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Id^-lO 



Class 



^"l.'b 



BookOwS \ 



Oneida Bistoifieal Society 



Given by Cj 






5 



y 






ANNUAL REPORT 



OF THE 



American Historical Association 



FOR 



THK Ylil^K 1896 



IN TWO VOLUMES. 

Vol. II. 

Propowd AMendnentii t« the Coniititiitloii, 17H1» to 1889. 



WASHINGTON : 

GOVERNMENT PRINTING 0FFIC3E. 
1897. 



THE PROPOSED AMENDMENTS TO THE CONSTITUTION OF THE UNITED 
STATES DURING THE FIRST CENTURY OF ITS HISTORY. 



?'. ' 



Prize Essay by HERMAN V. AMES, Ph. D., 

ITNIVBESITY OF PENNSYLVXlTlA. 



[At its Washington meeting, December 26, 21, 1895, the ozecutive conn- 
cil of the American Historical Association voted to offer a prize of $100 
for the best monograph, based upon original investigation in history, 
submitted to the council in the course of the year 1896. The committee 
of award, Profs. A. C. McLaughlin, of the University of Michigan ; Moses 
Coit Tyler, of Cornell University, and James Harvey Robinson, of Columbia 
University, gave the prize to Prof. Herman Y. Ames, of Ohio State Univer- 
sity, for his elaborate monograph on ** The proposed amendments to the 
Constitution of the United States during the first century of its history. '' — 
From Secretary's Report.] 



OOITTENTS. 



Chapter I. 



A 6BNKRAI. SURVEY OF THE ATTEMPTS TO SECURE AMENDMENTS. 

Page. 

1. Origin of the amending power in the Constitution of the United 

States : Proceedings of the Federal Convention 13 

2. Purpose and scope of the monograph ; division of the proposed 

amendments into periods 17 

3. The first period: 1789-1803 19 

4. The second period: 1804-1860 19 

5. The third period: 1860-1870 22 

6. The fourth period: 1870-1889 23 

Chapter II. 

PROPOSED ABCENDMBNTS AFFECTING THE FORM OF OOVERN- 

MENT^LBOISLATI VE. 

7. Distribution of powers among the three branches of the Gov- 

omment 26 

8. The legislative department; classification of amendments 27 

9. Regulation of eleotion8 to Congress 28 

10. Regulation for proving of elections 29 

11. Qualification of iuembers of Congress 29 

12. Incompatibility of other functions for members of Congress . 30 

13. Compensation of members 34 

14. Oath to the Constitution 3.5 

15. Changing the date of inauguration day and the time of the 

sessions of Congress 36 

16. Extra sessions of Congress ; quorum and vote 38 

17. Discipline of members of Congress -. 39 

18. Publication of the journals 40 

19. The House of Representatives 40 

20. Qualification of members '. 40 

21. Incompatibility of other functions for Representatives 42 

22. Apportionment of Representatives 42 

23. Limitation of the number of Representatives 54 

24. Election of Representatives 56 

25. Proving elections to the House 59 

26. Term of Representatives 59 

27. The Senate: Election of Senators 60 

28. Filling vacancies in the Senate 63 

6 



6 AMERICAN HISTORICAL ASSOCIATION. 

Pag*. 

29. Recall of Senators by the States 64 

30. Term of Senators fio 

31. Trial of impeachment of Senators 67 

32. The present status of amendments relating to the legislative 

department 67 

Chapter III. 

PROPOSED AMENDlfENTS AFFECTING THE FORM OF THE GOV- 
ERNMENT: EXECUTIVE. 

88. Exeontive department 69 

34. Plural Ezecative: Abolition of the Presidency or Vice-Presi- 

dency 69 

35. Filling of vacancies in the office of President or Vice-President: 

Addition of Vice-Presidents 72 

36. Qualifications of the Executive 73 

37. Choice of President and Vice-President 75 

38. Choice of Presidential electors: The twelfth amendment.. 77 

89. Choice of electors by districts 80 

40. Choice of electors by general ticket in each State 84 

41. Election of the President by the people as the legislature 

ofthe State shall direct 86 

42. Election of President and Vice-President by a general 

direct vote 87 

43. Election of President and Vice-President directly by dis- 

tricts 89 

44. Election of President and Vice-President directly by a com- 

bination of districts and votes at large 92 

45. Eleotion of President by a direct vote by States 94 

46. Election from candidates designated by the States 98 

47. Eleotion of President by lot 100 

48. Election of President from Presidential Sections 103 

49. Election of President and Vice-President by the voters as 

Congress shall direct 104 

50. Election of President and Vice-President in case of no 

choice at the first election 105 

51. Discussion of schemes for Presidential Election Ill 

52. Time of election 114 

53. Federal control over the election of President 115 

54. Settlement of contested Presidential Elections 116 

55. Exclusion of electors from appointment by the President. . 122 

56. Term of the President and Vice-Ptesident 123 

.57. Compensation of the President 129 

58. Powers of the President: The veto 129 

59. Limitations upon the appointing power of the President . . 134 

60. Regulation of the power of removal 136 

61. Civil-service reform 138 

62. Military power ofthe President 140 

63. The pardoning power of the President 140 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 7 

Pag*. 

64. Election of exeoutiTe officials 141 

65. Punishment of official miscondact 142 

66. Status of the Executive 142 

Chaptrr IV. 

PROPOSED AMSNDMIBNTS AFFECTING THE FORM OF THE 

JUDICIARY DEPARTMENT. 

67. Status of the judiciary 144 

68. Composition of the court and number of judges 144 

69. Choice of judges 146 

70. Judges to be ineligible to other offices 147 

71. Removal of judges: Impeachment -149 

72. Term of judges: Age limit 151 

73. Compensation of judges t 153 

74. Establishment and jurisdiction of inferior courts 153 

75. Jurisdiction of the court 154 

76. Jurisdiction of t>he courts : Suits against States 156 

77. Other tribunals for the settlement of disputes between the 

States and the Qeneral Government 159 

78. Summary of the propositions relative to the judiciary 163 

Chapter V. 

PROPOSED AMENDMENTS AFFECTINCi THE POWERS OF THE 

OOVERNMKNT. 

79. Division of powers between the States and the Qeneral Govern- 

ment 165 

80. Reservation of nondelegated powers to the States 165 

81. Effect of express prohibition on Congress 166 

82. Suits against States 167 

83. Implied powers of Congress 167 

84. Performance of national functions by the States 169 

85. Guaranty of the State governments 170 

86. Acknowledgement of secession 172 

87. Limitations on secession 173 

88. Limitations on the States by the ''Reconstruction Amend- 

ments'' 175 

89. Territorial powers 175 

90. Exclusive power of Congress over the seat of government 

and other sites ." 176 

91. Abridging territory 177 

92. Annexation of territory 178 

93. Admission of new States 180 

94. Representation of the Territories and the District of 

Columbia in Congress 181 

95. Disposition of the public lands 181 

96. Relation of the United States with individuals 182 

97. The first ten amendments 183 

98. Doctrinaire propositions ou the rights of man 185 

99. Titles of nobility' 186 



8 AMERICAN HISTORICAL ASSOCIATION. 

Page. 

100. Duelling 189 

101. Poor relief 139 

102. Marriage and divorce 190 

103. Habeas corpus, freedom of speecli and of the press 190 

104. Protection of personal liberty 192 

105. Slavery propositions before 1860 193 

106. Slavery propositions in 1860-61 194 

107. I'rohibition or limitation on abolition 195 

108. Fugitive slaves 198 

109. Slavery in the Territories 201 

110. Admission of States.... 202 

111. Acquirement of new territory 203 

112. The District of Columbia and places under Federal juris- 

diction 204 

113. Right of transit with slaves 205 

114 . Slave insurrections and conspiracies 206 

115. Colonization of free negroes 206 

116. The foreign slave trade 208 

117. Interstate slave trade and introduction of free negroes.... 209 

118. The question of abolition 210 

119. Abolition in the seceding States ' 211 

120. Compensated emancipation 212 

121. Compensation for slaves prohibited 213 

122. Total abolition urged 214 

123. Abolition secured by the thirteenth amendment 217 

124. Citizenship of negroes denied 218 

125. The fourteenth amendment 219 

126. Civil rights clauses of the fourteenth amendment 220 

127. Further enforcement of civil rights 222 

128. Disability of participants in the rebellion 223 

129. Restrictions on the suffrage 226 

130. Extension of the suffrage to negroes 227 

131. The fifteenth amendment 229 

132. Miscellaneous propositions on the suffrage since the fifteenth 

amendment 235 

133. Suffrage of the Chinese 237 

134. Woman's suffrage 237 

135. Present condition of the suffrage 239 

136. Present status of personal rights 239 

137. Financial powers : Early objections 240 

138. Taxation : Requisitions 242 

139. Direct taxes 243 

140. Apportionment of direct taxes 243 

141. Taxation of corporations by States 245 

142. Export duties 246 

143. Payment of the Confederate debt 247 

144. Claims for damages arising out of the civil war 248 

145. Payment of the national debt 249 

146. Distribution of the surplus .^. .^ 250 

147. Expenditures : Appropriation bills 250 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 9 

Paga 

148. Protective tariffs 251 

149. Prohibition of special legislation 252 

150. Status of financiallegislation 253 

151. Comnieroial power 254 

152. CharteriDg corporations 254 

153. National banks 255 

154. Issuing of bank notes 257 

155. Legal-tender notes 258 

156. Internal improvements 260 

157. Navigation laws and embargoes 263 

158. Bankruptcy laws 265 

159. Protection of trade-marks 265 

160. The status of commercial powers 266 

161. Foreign affairs 267 

162. War power : Declaration of war 269 

163. War power: The army 269 

164. Themilitia 270 

165. Military pensions 271 

166. Police power 271 

167. Prohibition of polygamy 272 

168. Manufacture and sale of intoxicating liquors prohibited.. 272. 

169. Protection to labor 273 

170. Education 274 

171. Establishment of a national university 274 

172. The States to provide free public schools ; 275 

173. Religion 277 

174. Summary of amendments on the powers of the Government.. . 279 

175. Proposition to change the name of the country 279 

Chapter VI. 

PROCKI>URE AS TO COXSTITUTIONAL AMENDMENTS. 

176. Method of amendment 281 

177. Oeneral convention to propose amendments 281 

178. Proposed amendments in Congress 284 

179. Ratification by conventions 286 

180. Regulation of the ratification by the legislature 287 

181. Propositions to change the majorities required by Article ^' . 292 

182. Ratification by popular vote 293 

183. What constitutes two- thirds majority under Article V 295 

184. Is signature of the President essential to amendments 295 

185. Is the signature of the governor essential to an amend- 

ment to the Federal Constitution approved by the legis- 
lature of the State 297 

186. What constitutes three-fourths of the States 298 

187. Can a State reconsider its action upon an amendment 299 

188. The difficulties of amendment 300 

Appendix. 

Calendar and bibliography of proposed amendments 306 



PREFACE. 

This work is based upon the results of a careful search for 
proposed amendments in the Oovernmeut documents covering 
the first century of the history of the Constitution. In many 
instances, especially daring the last quarter of the century, 
the text of the proposed amendment is not given in either the 
journals or the Congressional Olobe or Eecord, and in some 
cases the subject of the amendment is not even stated. In 
nearly all these cases it was possible to secure the text by con- 
sulting the file of the origiual printed drafts of resolutions and 
bills, which are to be found in the Senate document room in 
Washington. 

It is probable that some amendments proposed by the various 
State legislatures have not been found, owing to the fact that 
some of these proposed amendments were not presented to 
Congress, and hence were not included in the Gh>vernment 
records. Some cases of this kind have been found through an 
examination of the circular letters from the governors of the 
States proposing them directed to the governor of Massachu- 
setts, which are on file in the Massachusetts archives in the 
State house at Boston. A complete list of such propositions 
would necessitate an examination of the journals of the legis- 
lative bodies in all the States, most of which are still in manu- 
script form only, but it is believed that the most important 
propositions of this class have been found. It is scarcely pos- 
sible that all the prox)osed amendments presented to Congress 
have been included, although care has been taken to reduce 
the omissions to a minimum. 

Acknowledgments are due to Mr. Amzi Smith, sux)erin- 
tendent of the Senate document room, Washington; to Mr. 
Andrew H. Allen, Chief of the Bureau of Bolls and Library, 
Department of State, Washington ; to Mr. S. M. Hamilton, of 
the same Department, and to Mr. L. B. Proctor, secretary of 
the New York State Bar Association. All of these gentlemen 
courteously extended to me every facility for the examination 
of documents placed in their charge. 

11 



12 AMERICAN HISTORICAL ASSOCIATION. 

Above all I desire to express my indebtedness to Prof. 
Albert Bushnell Hart, of Harvard University, at whose sug- 
gestion the investigation of this subject was first undertaken, 
and to whose aid and encouragement its completion is in large 
measure due. 

r 

Philadelphia, Pa., October 7, 1897. 



THE PROPOSED AMENDMENTS TO THE CONSTITUTION OF THE 
UNITED STATES DURING THE FIRST CENTURY OF ITS HIS- 
TORY. 



By Hekman V. Ames, Ph. D. 

Chapter I. 

A GENERAL SURVEY OF THE ATTEMPTS TO SECURE 

AMENDMENTS. 

1. ORIGIN OF THE AMENDING POWER IN THE CONSTITUTION 
OF THE UNITED STATES: PROCEEDINGS OF THE FEDERAL 
CONVENTION. 

The ^^ fathers'' of the (Constitution were not sangnine enough 
to suppose that the organic law which they had framed was 
so perfect that it would never need to be altered^ The expe- 
rience of the Government under the ^'Articles of Confedera- 
tion" had produced the conviction that there was need of a 
system of amendment by which the Constitution could be 
made to conform to the requirements of future times. 

The specific provisions of Article V, which defines the man- 
ner of securing amendments to the Constitution, were not so 
much the result of institutional growth — as is true of so many 
of the provisions of the Constitution — as of mature delibera- 
tion and the spirit of compromise which characterized the 
work of the Convention. An examination of English and 
colonial precedents and of the State constitutions in force in 
1787, as well as of the debates in the Federal Convention, proves 
the truth of this statement.* The framers were here entering 



' See Mr. Iredell's speech in North Carolina convention. Elliot's Debates, iv, 177. Re- 
port of New York State Bar Association, vol. xiii, p. 138. 

> However, the idea that provision sliould be made in the instmment of government 
itself for the method of its amendment is peculiarly American. Provision for the regular 
and orderly amendment of an instrument of government first appears in The Pennsyl- 
vania Frame of Government of 1683. A similar provision reappears in the Act of Settle- 
ment of 1683, The Pennsylvania Frame of 1606, and The Pennsylvania Charter of 
Privileges of 1701. Each of these documents provides that it shall not be altered, changed, 
or diminished "without the consent of the governor" "and six parts of seven of the 
assembly." No other colonial charter contained any provision for amendment. For text 
of above charter see Poore, Charters and Constitutions, ii. 

13 



14 AMERICAN HISTORICAL A8S0CUTI0N. 

upon a comparatively new field. The colonists, although 
familiar with the English system, which enabled Parliament 
to effect fundamental changes in the constitution in the same 
way as in the statute law, were not inclined to follow this 
X)recedeutJ <^ Their constitutions, purporting to define the 
power of the several branches of the government, in no case 
permitted definitive amendments by the legislature."* With 
few exceptions the State constitutions first framed containe<l 
no provison for their future amendment.^ By 1787, however, 
eight of the Stat« constitutions contained such a provision. 
Three gave the amending power to the legislature,^ "but under 
restrictions which reduced it far below the power so familiar 
to our fathers in the Parliament."^ Five, under various restric- 
tions, reserved the power for conventions.^ Not one made 
provision for amendment through the agency of either a con 
vention or the legislative body. It was reserved for the Fed 
oral Convention to embody both methods in the draft it sent 
out to the States for adoption. 

The desirability of some provision for amendment was 
admitted early in the session of the Federal Convention. Dif 
ference of opinion, however, developed later in regard to the 
method to be employed. Should the National Legislature or a 
convention called on application of the States propose amend- 
ments f Should a general convention, or conventions in the 
States, or the legislatures thereof, ratify the same? Further, 
what ms^ority should be necessary to secure the adoption of 
an amendment? The matter first came before the Convention, 
May 29, 1787, through one of the articles of the Randolph 
plan, which read as follows: "Resolved, that provision ought 
to be made for the amendment of the Articles of Union when- 
soever it shall seem necessary, and that the assent of the 
National Legislature ought not to be required thereto."® The 
Pinckney plan, which was presented the same day, contained 
the first detailed suggestion of the procedure to be followed. 



' It is tnie the legislatures had asstiiued power to declare their independence of Great 
Britain. 

'Jameson, Const. Convention, p. 547. Story ii, p. 576. 

'Maryland, 1776; Delaware, 1776; Pennsylvania, 1776- Georgia, 1777; Vermont, 1777. 
Jameson, p. 550, note 1. 

« Maryland, 1776; Delaware, 1776; Sonth Carolina, 1778. 

* Pennsylvania, 1776; Vermont, 1777, 1787; Georgia, 1777; Massachusetts. 1780; New 
FlampsHire, 1784. Only in Massaohnsetts and New Hampshire during this early pt^riod 
were the constitutions submitted to the people for ratification. See Davis Am. Const., 
Johns Hopkins Univ. Studies, vol. in, p. 472. Scbouler, Const*al Studies, pp. 47-60. 

• Elliot, Vol. v., pp. 123, 190. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 15 

It provided either for the calling a coDveiition for the purpose 
of amending the Gonstitation whenever two-thirds of the 
legislatures of the States apply for the same/ or for the pro- 
posal by Congress, with the consent of two-thirds of each 
House, of amendments which should be ratified upon the 
agreement of two-thirds' of the legislatures of the States.'^ 

The Convention evidently desired to reserve this very im- 
portant subject for subsequent consideration^ for it reached no 
other conclusion before the committee of detail were instructed, 
beyond a declaration << that provision ought to be made for 
amending the Articles of Union whensoever it shall seem nec- 
essary."^ The method agreed upon by the committee and em- 
bodied in the first draft of the Constitution was as follows: 
^< On application of the legislatures of two-thirds of the States 
of the Union for an amendment of this Constitution, the Leg- 
islature of the United States shall call a convention for that 
purpose."^ This article, although agreed to on August 10, did 
not give universal satisfaction.^ Just a month later Mr. Gerry 
precipitated a discussion by moving the reconsideration of the 
article as adopted. His action was prompted by the fear that 
<^ two-thirds of the States can obtain a convention that may 
subvert the State constitutions altogether."^ Hamilton also 
favored reconsideration, but for diametrically opposite reasons. 
He argued that the mode proposed was inadequate, inasmuch 
as ^< the State legislatures will not apply for alterations but 
with a view to increase their own powers. The Katioual Leg- 
islature will be the first to perceive and will be most sensible 
to the necessity of amendment and ought also to be empow- 
ered, whenever two-thirds of each branch should concur, to 
call a convention."' Madison also opposed the plan of the 
committee on account of its vagueness. The article, in fact, 
did not make clear whether '^ the legislatures were to propose 
amendments and the convention was to adopt them, or whether 
the convention was both to propose and adopt them, or only 
to propose them for adoption by some other body or bodies not 



' This proyiflion may have been saggested by the article in the MaBsachoaetUt constitu- 
tion (1780). 

* Perhaps saggested by article in the New Hampehire constitution (178t). 

* Elliot, VoL V, p. 132. The genainenees of the Pinokney plan is now disputed. 
*IMd., 376. In the words of Randolph's resolution. 

* Ibid., 381. The first constitutions of New Hampshire, New York, New Jersey, Penn- 
srlTania, Delaware, Maryland, Virginia, and North Carolina had been franietl and adopted 
by conventions. 

* Ibid.. 498. Art. 10 of the first draft. 
'Ibid., 530. 



16 AMERICAN HISTORICAL ASSOCIATION. 

specified."^ The force qf Hamilton's and Madison's argument 
was quickly seen by the reconsideration of the article. Eoger 
Sherman moved to add a provision to the same enabling Con- 
gress to propose^ amendments to the several States, but no 
amendment should bevalid withouttbeconsentof all theStates.'^ 
After an attempt to change this so as to read ^'two-thirds" 
had been defeated,^ a motion substituting ^' three- fourths" of 
the States was agreed to unanimously. At this point Mad- 
ison came forward with a substitute which, with certain modi 
ftcations, to be referred to later, was substantially the same as 
the article incorporated in the Constitution. It was agreed to 
by a vote of 9 to 1/ Subsequently the provision which re- 
quired the calling a convention to draw up amendments on 
application of two-thirds of the States was inserted in defer 
ence to the desire that the people might have a more direct 
share in the framing of amendments. Sherman, fearing that 
"three- fourths" of the States might be brought to do things 
fatal to particular States, as <' abolishing them altogether," or 
depriving them of their equality in the Senate, renewed his 
attempt to secure a provision to prevent the ratification of an 
amendment without the consent of all.'^ The failure to secuie 
amendments to the ^'Articles of Confederation," because of a 
similar provision, was too deeply impressed upon the minds of 
all to permit such a restriction meeting with general approval.*^ 
In the course of the discussion the question whether certain 
features of the Constitution should be exempt from amend- 
meut arose. Two such limitations were demanded, the one by 
the Southern States, the other by the small States. Each of 
these objects had been the subject of one of the great compro- 
mises of the Convention, and it was desired that the provisions 
resulting Irom these compromises should be made irreversible. 
The first limitation, providing that no amendment made prior 
to the year 1808 should in any manner aii'ect the clauses relat 
ing to the slave trade and the capitation or other direct taxes. 

* Curtis, Hiat. of Const., Vol. u, p. 475. 
*BUiot,VoLy,p.530. 

*Vote: Ay«.KewHamp8hii«.PennBylva]iia,Delawaro, Maryland, Virginia, 6; no, Mass 
•ohaBetto, Connecticut, New Jersey, North Carolina. South Carolina, Georgia|6. EUiot, 
Vol. V, p. 681. 

* Ihid., 581. Delaware, no; New Hampshire, divided. 
> Ibid., 551. 

• *• The OonfMeration," said Baadolph in the Convention, " was made in the infancy of 
the aolence of oonstitutiona." ** The wisdom drawn from ten years of experience with the 
State oonstJtations and the Confederation shed a flood of light on their work. ' Daris, 
Am. Oonata., p, 485. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 17* 

was agreed to, to meet the objection of the slave States.^ The 
second limitation was suggested by Mr. Sherman, just before 
the close of the Convention, after the failure of his motion 
already referred to. It provided that "No State shall with- 
out its consent be affected in its internal police or deprived of 
its equal suffrage in the Senate."* This was opposed by Madi- 
son on the ground that its adoption would be but the signal 
for the application for special provisions from every State. 
The measure only received the support of the three small 
States represented in the Convention, namely Connecticut, 'Sew 
Jersey, and Delaware. Having failed to secure the guaranty 
he thought necessary, Mr. Sherman, determined to guard the 
interests of the small States, moved to strike out the entire 
article in regard to amendment, but this did not even com- 
mand the support of all the small States. At this critical 
moment Gouverneiir Morris moved to add the provision guar- 
anteeing to each State its equal representation in the Senate. 
'^This motion," says Madison in his notes, "being dictated by 
the circulating murmurs of the small States, was agreed to 
without debate or opposition.'" Such, in brief, is the history 
of the origin of the amending power as embodied in the Con- 
stitution of the United States. 

The results of the deliberations of the Convention appear in 
Article Y of the Constitution, which reads as follows: 

The Congress, whenever two- thirds of both Houses shall deem i t neces- 
sary, shall propose amendments to this Constitution, or, on the application 
of the legislatures of two-thirds of the several States, shall call a convention 
for proposing amendments, which, in either case, shall be valid to all 
intents and purposes as part of this Con.stitution, when ratified by the 
legislatures of three- fourths of the several States, or by conventions in 
three-fourths thereof, as the one or the other mode of ratification may be 
proposed by the Congress ; provided that no amendmen t which may be made 
prior to the year one thousand eight hundred and eight shall in any man- 
ner afi'eot the first and fourth clauses in the ninth section of the first 
article ; and that no State, without its consent, shall be deprived of its 
equal suffrage in the Senate. 

2. PURPOSE AND SCOPE OF THE MONOGRAPH: DIVISION OF 
THE PROPOSED AMENDMENTS INTO PERIODS. 

Defects in the Constitution have revealed themselves from 
time to time, and the amending power has often been invoked. 



I EUiot^ Vol. v., p. 631. Seo Rutledge'e remarks. » Ibid., 531. « Ibid., pp. 551-552. 

H. Doc. 353, pt 2 2 



18 AMERICAN HISTORICAL ASSOCIATION. 

in a few iustaiices successfully, as the fifteen amendments 
show. There have been voluminous treatises by eminent 
jurists and publicists, devoted to the discussion and interpreta- 
tion of these fifteen amendments which have been incorporated 
into the Constitution, but very little has been written in regard 
to the manner of securing ameudmeuts. In fact, no attention 
has been paid, with rare exception, to the amendments which 
have failed, or to that numerous class of propositions which 
never went beyond the preliminary stages. 

It is the purpose of this monograph to investigate this 
uncultivated field, and to endeavor to show, by means of a 
systematic examination of the records, what deficiencies have 
been felt and what remedies have been proposed. The mate- 
rial upon which this work is based has all been compiled from 
the records of Congress.* In this study of the proposed 
amendments only those have been selected which were actually 
brought to the official notice of Congress, either by its mem- 
bers, the State legislatures, or the Presidents, from the time 
of the adoption of the Constitution by the conventions in the 
different States to the end of the Fiftieth' Congress, March 
4, ISSO.* 

It is diflicult to avoid the conclusion that it was the expec- 
tation of the members of the Federal Convention that a fre- 
quent use of the amending power would be madie.^ They 
doubtless thought that the plan adopted would secure the 
desired end whenever the popular will would justiiy a change. 
The action of the State conventions and the early amendment 
of the Constitution seemed to indicate that this view was cor- 
rect. It will be of interest, therefore, to see to what degree 
their expectation has been realized, by an examination of the 
proposed amendmentB, and of the movements to secure their 
adoption. Before, however, passing to the consideration of 
particular amendments, it seems desirable to introduce a pre- 
liminary chapter which shall present a general view of the 
attempts to amend the Constitution, in order that the reader 
may have a comprehensive idea of this phase of the constitu- 
tional history of our country. 



1 Includiog an examination of the original bills, where text is not given in the Con- 
gressional Record, and circular letters of the governors of the States. 

> No notice has been taken of petitions. 

•See Hamilton's remarks in Fe<ieral Convention, Elliot, Vol. v, p. 530; jilso, the Fed. 
eralist, No. 43, Hamilton's ed., p. 346. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 19 

It is the writer's purpose in this chapter to treat the pro- 
posed amendments chronologically by periods, aiming to give 
the general cbaracteristics of each period, and in the subse. 
quent chapters to consider the same topically. 

Upward of 1,300 distinct resolutions, containing over 1,800 
propositions to amend the Constitution, have been offered in 
the National Legislature during the first century of our history 
under the Constitution.^ These naturally fall into four distinct 
periods: The first period embracing the years 1789-1803, and 
aiming at the perfection of details; the second period, includ- 
ing the years 1803-1860, and covering general alterations; the 
third period, comprising the years 1860-1870, and relating to 
slavery and reconstruction; and the fourth period, extending 
from 1870 to 1889, and proposing general emendations. 

3. THE FIRST PERIOD: 178»-1803. 

This period, which covers the early years of our history, is 
characterized by the passage of the first ten amendments, 
known as the Bill of Eights, in response to the spirit of dissatis- 
faction expressed by the series of 124 amendments proposed 
by seven of the States at the time of their ratification of the 
Constitution, and the general demand of the country for further 
limitations ui)on the powers of the Federal Government.* 

The. period is further marked by a number of amendments 
intended to correct the minor defects which had become appar- 
ent in the working of the Constitution. The provisions of some 
of these became crystallized in the eleventh and twelfth 
amendments.^ 

Of the one hundred amendments which have been suggested 
affecting the status of the judiciary, only one has been dis- 
covered which would nullify the provisions of the eleventh 
amendment. Although the twelfth amendment remedied the 
fault discovered in the electoral system, yet the system itself 
has given rise to more dissatisfaction than any other feature 
of our Constitution, as is shown by the fact that more amend- 
ments have been proposed on this subject than upon any other. 

4. THE SECOND PERIOD: 1804-1860. 

In this period, extending over a longer term of years than the 
other three together, were introduced upward of four hundred 

> Down to the oloso of tbo Fiftieth Congress in March, 1889. 

* ApiMjndix, Xoa. 1-124. 

•ApPmNo8.321,368. 



20 AMERICAN HISTORICAL ASSOCIATION. 

amendments covering a wide field of sabjectsJ Propositions 
contemplating changes in the election, term, removal, compen- 
sation, and duties of members of the legislative, executive, and 
judicial departments were the most numerous. 

This being the period of conflict between the broad and 
strict constructionists, it is characterized by many attempts to 
confirm or prohibit, by amendment, practices established by 
custom. Of this nature were the amendments granting appro- 
priations for internal improvements, and x)rohibiting or author- 
izing the establishment of a national bank ; they were introduced 
periodically during the years 1813 to 1832, as the Congressional 
discussion or Presidential message or veto suggested. A closer 
examination of the scattered propositions shows that they are 
indices of the political struggles of the time; thus, it is evident 
that the trial of Judge Chase suggested the several propositions 
introduced during the years 1805 to i809 in regard to the term 
and removal of judges. The resolutions proposing the appor- 
tionment of Representatives and direct taxes to the free inhab- 
itants, and prohibiting the importation of slaves, introduced 
previous to 1808, were called out by the approach of that year 
when the agreement prohibiting amendments on these ques- 
tions would terminate. As a result of the war of 1812 the 
members from Connecticut and Massachusets, acting upon the 
instruction of their respective State legislatures, introduced a 
set of interesting amendments, the work of the Hartford con- 
vention.* In 1833 Georgia offered a petition for the call of a 
convention to consider a series of thirteen amendments, the 
greater number of which were doubtless suggested by the 
recent nullification by South Carolina, and her own contest 
with the Federal judiciary, arising out of the Indian land ques- 
tion.^ President Jackson's numerous vetoes, those of the 
national-bank and internal-improvement bills being especially 
obnoxious, gave rise to resolutions providing that a bill might 
be passed over the veto by a majority vote. The presence of 
a surplus caused Mr. Calhoun in 1835 and in 1836 to present a 
proposition providing for its distribution among the States. 
The crisis of 1837 led to the introduction of amendments pro- 
hibiting the issue of State bank notes. President Tyler's 
erratic course led to another flood of resolutions proposing 
amendments restricting the eligibility of the President to a 



>App.,Noa. 363-777. 

» App., Nos. 424-431. 432-439, 440-447. 

■App..K^08. 613-625. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 21 

single term, and enabling bills to be passed over the veto by a 
majority vote, as well as to amendments preventing a pocket 
veto. 

The proofs are many of a widespread dissatisfaction on the 
part of the country with both the existing method of electing 
the President and the length of the Presidential term. At four 
diifereut times, between the years 1813 and 1822, an amend- 
ment proposing that the electors should be chosen by districts 
was passed by one House of Congress.^ During this period 
forty-four amendments of a somewhat similar character were 
offered in Congress. The failure of the electors in 1824 to 
choose a President, and the subsequent defeat of Jackson by 
the House of Eepresentatives, gave rise to a very large num- 
ber of propositions upon the choice of the Executive, so many 
in fact, that one gentleman introduced a resolution that amend- 
ments should only be proposed decennially.* Some of these 
stipulate that in no case shall the election devolve upon the 
House of Representatives, and others, prompted by the alleged 
bargain between Clay and Adams, provide tliat in case the 
election should fall to the House, no member of Congress 
should be eligible to the Cabinet. Various plans for the elec- 
tion of the President without the intervention of electors were 
suggested. Some of these proposed a direct vote by the States, 
more by districts, and twenty-two declared for a popular vote. 
Among so large a number of propositions there were natu- 
rally some of a novel character. The most striking of these 
were two suggesting the choice of President by lot. The first, 
introduced by Senator Hillhouse of Connecticut, in 1808, pro- 
vided that the Senators should hold office for three years, and 
one-third retire annually, from the retiring Senators one should 
be chosen by lot as President for the ensuing year.' The other, 
brought forward by Mr. Vinton of Ohio, in 1844 and again in 
1846, arranged that each State should by popular vote elect 
from its citizens a candidate for the Presidency; from these 
candidates one was to be chosen by lot.^ The amusing details 
of this suggestion were, that as many balls as there are Sena- 
tors and Representatives from each State, inscribed with the 
name of the State, shall be placed in a box. One ball shall be 
drawn from the box and the candidate elected by the State the 
name of which is upon the ball drawn out shall be President. 



J App., No8. 359, 409, 485, 489. » App.. No. 571. » App., No. 392. * App., Noa. 740, 744, 



22 AMERICAN HISTORICAL ASSOCIATION. 

Various amendments were presented limiting the President 
to one, or at most two terms. An amendment making tbe 
President ineligible for a third term received the sanction of 
the Senate in 1824, and again in 1826.^ During this period 
there were fourteen amendments proposed diminishing the 
veto power and two dispensing with it. 

Amendments dealing with the relations of the Federal Gov- 
ernment to individuals were few in number; so completely had 
the first ten amendments covered the field that nearly all dis- 
satisfaction had been allayed. One of the few introduced, pro- 
viding that anyone who should accept a title of nobility, or 
without the consent of Congress, a present, office, or emolu- 
ment from any foreign sovereign or State, should cease to be 
a citizen of the United States and incapable of holding office 
therein, passed both Houses of Congress in 1810 and received 
the sanction of twelve States, failing of ratification by one 
vote only.' 

The majority of the remaining propositions of this class 
aimed at the protection or abolition of slavery. As early as 
1818, Mr. Livermore of Xew Ilampshire introduced a resolu- 
tion prohibiting slavery, which failed to receive the considera- 
tion of the House.^ Again, in 1839, John Quincy Adams tried 
to introduce a series of amendments abolishing hereditary 
slavery after 1842, forbidding the admission of slave States 
after 1845, and prohibiting slavery and the slave trade at the 
seat of government. Shortly after the compromise of 1850 an 
unsuccessful attempt was made to still further protect the 
interest of the slavocracy by the introduction of an amend- 
ment providing that no amendment shall be made abolishing 
or affecting slavery in any State without the concurrence of 
the slave States.* 

The most remarkable fact of the period is that not one of the 
four hundred amendments proposed during these fifty-eight 
years became a part of the Constitution. Six passed the 
Senate;^ in addition, one only received the sanction of both 
branches of Congress.^ 

5. THE THIRD PERIOD : 1880-1870. 

Toward the close of the second period there was a lull; dur- 
ing two sessions of Congress no amendments were introduced, 



» App., No8. 535, 545. * App.. Nob. 697-699. 

« App., No. 399. = A pp. . Xo.s. 409, 485, 489, 505, 535, 545. 

» App., No. 474. •App., No. 399. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 23 

but at last an avalanche of propositions fell upon the second 
session of the Thirty-Sixth Congress (1860-61), nearly all deal- 
ing with some phase of the slavery question, prompted by the 
hope of preserving the Union. Some of these suggested very 
radical changes in the form of government, notably one pro- 
posing that the Presidency be abolished, and an executive 
council of three be established, each armed with the veto;^ 
and another that either a dual executive should be created, or 
a division of the Senate into two bodies should be effected.^ 

Several States had already passed the ordinance of secession 
before anything had been done 5 finally upon the 2d of March, 
1861, the so-called Oorwin amendment prohibiting any amend- 
ment abolishing or interfering within any State with the insti- 
tution of slavery passed Congress.^ There was no chance for 
its ratification. The time for compromise had passed, and the 
question was transferred from legislative halls to the field of 
battle. For some months after this Congress was so occupied 
with the consideration of war measures that the amending 
power was scarcely invoked, but from 1864 on, the question of 
amendment became of the first importance. The political and 
social changes brought about by the war presented anew set of 
questions, so that the amendments relating to the legal status 
of individuals, which previously had been of the least, now 
became of the greatest importance. 

From the large number of resolutions proposed during the 
reconstruction period, nearly all dealing with questions aris- 
ing out of the rebellion, the thirteenth, fourteenth, and fifteenth 
amendments were ratified, registering the results of the war.* 
In this i^eriod the question of amendment received the most 
serious attention of Congress; hence it was the most produc- 
tive in results. Besides the three now a part of the Constitu- 
tion and the Corwin amendment, four amendments passed one 
House, but not the other.* 

5. THE FOURTH PERIOD, 1870-1889. 

The last of the reconstruction amendments was ratified in 
1870. The last twenty years of the first century of the life of 
the Constitution form a. period characterized by attempts to 
alter the Constitution in almost every particular. While in 



* App., No. 804. ' * App., N08. 985, 1135, 1284. 

* App., No. 795. » App., No8. 1055, 1079, 1250, 1308. 
SApp.,No.93L 



24 AMERICAN HISTORICAL A8S0CIATI0K. 

this respect, not anlike the tentative eflTorts of the second 
period, the amendments considered in the fourth more gener- 
ally contemplated substantial alterations than confirmatory 
enactment. About four hundred propositions have been intro- 
duced during this time; ^ two classes command attention, the one 
and the larger involving changes in the form of government, 
tbe other in its powers. Under the former the choice, term, 
composition, and duties of the legislative, executive, and judi- 
cial are considered ; there being some one hundred propositions 
on the term and election of President alone. One of these — 
proposed by Mr. Maish of Pennsylvania, in 1877, and again in 
1888 — is worthy of mention. It provided for a direct vote by 
States, but the electoral vote should be distributed among the 
candidates in the proportion the electoral ratio should bear 
to. the popular vote of each candidate.'^ 

One noticeable feature is the increase in the number of 
amendments calling for the popular election of the President, 
Senators, and even such executive officers as postmasters and 
revenue collectors. The desire to reduce the number of mem- 
bers in the House of Eepresentatives has led to the introduc- 
tion, since 1880, of five amendments to accomplish this result, 
the last of these placed the number at two hundred and fifty .^ 

Two amendments have passed the Senate, the first in 1886, 
the second in 1887, changing the date of Inauguration Day to 
April 30, but both failed in the House.* 

The second class, comprising amendments to the powers of 
the Government, covers a large variety of subjects. Many of 
these indicate a strong drift toward paternalism. Some are 
attempts to limit the powers of Congress as the State legisla- 
tures have been limited; others are intended to still further 
protect the civil and political rights of the individual; while 
others aim at the correction of abuses both of a social and 
political nature. A good example of this last group is the 
amendment introduced by Mr. Blaine, prohibiting the distri- 
bution of money to religious sects, which passed the House 
August 4, 1876, but received no further indorsement.^ 

During this period but few amendments received even brief 
consideration, and only four out of the entire number received 
the approval of one House. 



> App., Ko8. 1368-1736. « App., Nob. 1676,1691. 

* App., ITos. 1438, 1705. * App.. No. 1401. 

»App., Nos.1507, 1530. 1553, 1585, 1716. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 25 

The prospect of almost certain failure does not seem to have 
diminished the number of amendments offered.^ In recent 
years there has been a gradual increase in the number pre- 
sented. During the fourth period there were over four hundred 
distinct i)roposition8 introduced, and in the Fiftieth Congress 
forty-eight resolutions, ])roposing amendments on twenty dif- 
ferent subjects, were presented. 

The detailed examination of the proposed amendments which 
follows shows that the importance of these propositions does 
not lie in their influence in effecting actual changes within the 
Constitution merely, but that they are indices of the move- 
ments to effect a change, and to a large degree show the waves 
of popular feeling and reflect the political theories of the time. 
It is believed that a study of the efforts to amend the Consti- 
tution will contribute to a fuller and clearer understanding of 
our history, both constitutional and political. 



> "An examination of those reveals both the ingeunity and variety of the minds con- 
c«iving them, and the preHcnt futility of any ill-connidored attempt to follow in their foot- 
steps." Keport of tho coniniittee of the Now York State Bar Association, 1890. Keporta 
of the Association, Vol. xnr, p. 142. 



Chapteb II. 

PROPOSED AMENDMENTS AFFECTING THE FORM OF 

GOVERNMENT: LEGISLATIVE. 

7. DISTRIBUTION OF POWERS AMONG THE THREE BRANCHES 

OF THE GOVERNMENT. 

There seemed to be some apprehension among the members 
of the First Congress that the powers delegated respectively 
to each of the three branches of the Government might be 
usurped by one of the other departments ; one department thus 
trenching upon the rights of another might disarrange the 
harmonious working of a system the success of which was 
supposed to be dependent upon the complete separation of the 
three branches of the Government. Accordingly an attempt 
was persistently made in the first session of Congress to 
reaffirm the doctrine in a formal manner. Mr. Madison 
included in the series' of amendments presented by him early 
in this session a proposition,^ which, as reported in a slightly 
different form and passed by the House, read: "The powers 
delegated by the Constitution to the Government of the United 
States shall be exercised as therein appropriated, so that the 
legislative shall never exercise the powers vested in the execu- 
tive or judicial; nor the executive the powers vested in the 
legislative or judicial; nor the judicial the powers vested in 
the legislative or executive.''^ The Senate, however, either 
did not share in the apprehensions of the Ilouse or failed to 
see how this amendment could further insure the integrity of 
each department, and struck out the resolution. The next 
day, however, a motion was made in the Senate to add the 
following to the proposed amendments: "That the legislative, 
executive, and judiciary i)owers of the Government should be 
separate and distinct." Then follows a few phrases of political 
moralizing, to the eflFect " that the members of the two first 
may be restrained from oppression by feeling and participating 



1 App., No. 144. Very similar t-o famous clause in tlie conatitution of MassachusettH 
(1780), Part I, art. 30, and doubtless 8uggeHt*»d by it. See also constitution of Kentucky 
(1792), art. 1. 

•App.,No.230. 

26 



1>R0P0SED AMENDMENTS TO TflE CONSTITUTION. 27 

in the public bartbens, they shonld at fixed periods be reduced 
to a private station, returning into the mass of the people, and 
the vacancies be supplied by certain and regular elections," 
etc.^ This resolution shared the fate of that proposed by the 
House, and was the last upon this subject which has ever been 
suggested. 

Experience has shown few cases of conflict between the 
legislative and the judiciary,* or between the judiciary and 
the executive,^ but between the legislative and the executive 
there have been several well-known instances of the attempt by 
one department to encroach upon the prerogatives of the other. 
The Executive has usually found his veto power an effective 
weapon in protecting his powers from any encroachment of 
the legislature.* The power of Congress over appropriation 
bills has been supposed to protect it against aggression. 

8. THE LEGISLATIVE DEPARTMENT: CLASSIFICATION OF 

AMENDMENTS. 

The system of two Houses in the National Legislature was 
to a large degree experimental. The Continental Congress and 
the Congress of the Confederation had each contoiined one 
House only. It is not surprising, therefore, that everf in the 
earlier years various amendments were proposed aiming either 
to correct the imperfections which had become evident in the 
working of the legislative department, or to introduce what 
their authors considered desirable innovations; from time to 
time in subsequent years various other propositions to change 
the organization or powers of the legislative body have been 
made. The class of amendments dealing with the organization 
of this department will be considered in the present chapter.' 
They may be conveniently divided into three groups; those 
relating alike to both branches of Congress and those referring 
distinctively either to the House of Representatives or to the 
Senate. 

»App.,No.271. 

*The judiciary act of 1802 was not bo much an attack upon the judiciary a.s on the 
Federal party. 

"The decision in Marbnry v. Madison (1 Cranoh, 137) aroused Jefferson's hostility against 
the court. Jackson also refused to enforce the decrees of the court against Georgia. See 
post, par. 77. See also Foat«r, Com. on Const., i, pp. 303-305. 

• *Mason, Veto Power, par. 17-36. Davis, Am. Consts. Johns Hopkins Univ. Stadies, 
3d series, p. 465. Foster, Com. on Const., i| PP- 238 et seq. 

* Those in regard to the powers of Congress in Chapter v. 



28 AMERICAN HISTORICAL ASSOCIATIOK. 

We pass directly to the consideration of the first group. 
First in importance among the various attempts made in the 
early years to alter the Constitution, were those directed against 
the provisions relative to the regulation of elections, and the 
qualification and compensation of members of both branches 
of Congress. Other proposals were intended to prevent mem- 
bers accepting any other civil office, and still others to prohibit 
members from participating in such pursuits as would tend to 
prejudice their action and unfit them for service in Congress. 
In more recent years very few amendments which can be 
classed under this head have been presented, the only move- 
ment of importance has been the one directed toward a change 
in the time of the sessions of Congress. 

9. REGULATION OF ELECTION TO CONGRESS 

By the Constitution Congress may at any time by law make 
or alter the regulations prescribed by the legislature of the 
State for the time, place, and manner of holding elections for 
Senators and Kepresentatives (except as to the place for choos- 
ing Senator)^ This clause created much dissatisfaction in 
some portions of the country ; conventions in four of the North- 
ern and»three of the Southern States, at the time of their rati- 
fication of the Constitution, recommended substantially the 
same amendment to the Constitution, namely, that Congress 
shall not exercise this right "except when the legislature of 
any State shall neglect, refuse, or be disabled by invasion or 
rebellion to prescribe the same."- The South Carolina con- 
vention prefaced their proposition with the strong declaration 
"that the right of prescribing the manner, time, and place of 
holding elections to the Federal Legislature should be forever 
inseparably annexed to the sovereignty of the several States." 
The New York convention was willing to permit Congress to 
exercise the power of prescribing the time for the election of 
Representatives. 

In the First Congress, in deference to this expression of 
opinion, several attempts were made to add to the series about 
to be recommended to the States an amendment on this sub- 
ject, similar to those suggested by the State conventions. One 
was proposed by Mr. Sedgwick, giving Congress power to make 
regulations for elections, provided the States made improper 



> Art. 1, SCO. 4, par. 1. » App. Nos. 3, 10, 16, 41, 49, 94, 105. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 29 

ones. Mr. Tucker suggested that the clause in the Constitu- 
tion should be struck out, but all these attempts to amend 
failed. It is quite possible that the result might have been 
different had the Senators and Representatives from Korth 
Carolina and Ehode Island been present, for the conventions 
in those States recommended this change. ^ 

10. REGULATIONS FOR PROVING ELECTIONS. 

Only one attempt has been made to amend the provision of the 
Constitution in regard to the proving of elections. * This was 
one of the series of amendments introduced by Mr. Tucker of 
South Carolina during the discussion of the so-called "Bill of 
Bights" in the First Congress. It proposed that this clause 
should be amended so that instead of each House judging of 
the election ot its members, "each State should be the judge, 
according to its own laws, of the election of its Senators and 
Kepresentati ves to sit in Congress." ^ The resolution failed to 
be referred, showing that in this case the House was unwilling 
to have the prerogatives of the Federal Government curtailed. 
In more recent years the tendency has been to assert the regu- 
lative power of Congress, and to supersede the system of 
regulation. * 

11. QUALIFICATIONS OF MEMBERS OF CONGRESS. 

One of the subjects which has greatly exercised the ingenuity 
of amendment framers is that of the qualification of members 
of Congress. Two groups of these propositions may be dis- 
tinguished — those introduced between 1788 and 1815, and those 
introduced as a result of the civil war and applying to the dis- 
ability of secessionists.^ One of the classes which were to be 
excluded by some of the various propositions of the first group 
was that of debtors of the United States. Such a restriction 
was proposed during the general discussion of amendments in 
the First Congress.^ 

The opposition to the national bank during the Third Con- 
gress took the form of a prolonged discussion of an amend- 
ment proposing to exclude oflScers and stockholders of the 



1 See post par. 24, for propoaitions aflbotini; RepreHentatives. 

* Art 1, sec. 6, cl. 1. 
 App., No. 197. 

* See post par. 24. In the 52d and &3d (^tm^^rt'SHeH tliere was a reaction against Federal 
control and certain laws were repealed. . 

' These are cousidered in par. 128. 

* App., No. 204. Rejected September 7, 1789. 



30 AMERICAN HISTORICAL ASSOCIATION. 

United States Bauk from Congress.^ The origiual motion was 
so amended as to exclade only the officers of the bank, and 
thus amended it was rejected by a vote of 12 yeas to 13 nays.^ 
The presence of contractors in the Hoase led to the introduc- 
tion of an amendment in 1806 to exclnde contractors of the 
Government from the House of Representatives.^ Two years 
later a similar resolution was offered, but included the Senate 
as well as the House.* This may have been suggested by the 
connection of Senator Smith of Maryland with a Baltimore 
firm which had large contracts with the Government. A third 
unsuccessful attempt was made in 1836 to secure an amend- 
ment making members of Congress ineligible to civil office and 
prohibiting their holding or making any contract with or under 
the authority of the United States.* 

The exclusion of naturalized x>6rsons from Congress was 
sought by another group of propositions. The New York rati- 
fying convention and the Massachusetts and Connecticut legis- 
latures in 1798 recommended an amendment making foreigners 
naturalized since the Declaration of Independence ineligible 
to the office of Senator and Eepresentative in Congress.^ The 
political significance of these amendments is referred to else- 
where.'' One of the amendments ft*amed by the Hartford con- 
vention and recommended to Congress by the legislatures of 
Massachusetts and Connecticut, through their Senators and 
Eepresentatives, stipulated that no person hereafter natural- 
ized should be eligible to either House.^ 

12. INCOMPATIBILITY OF OTHEB FUNCTIONS FOR MEMBEES OF CONGRESS. 

No less than thirty-three resolutions have been introduced 
proposing that members of the Senate and House of Repre- 
sentatives shall not be eligible to any appointment or office. 



lApp., No. 3J8. 

«App.. No8. 320, 324. 

> App., No. 374. See post par. 20 for farther discussion. 

< App., No. 387. The coDstitntions of some of the States had such a provision. See con- 
stitution of North Carolina of 1776, art. 27. For exclusion of clergy, see post par. 176. 

•App., No. 655. 

•App , Nos. 50, 330-333, 333a b. 

'Postpar. 36. 

* App., Nos. 430, 438, 446. For replies of the variouB States, see post par. 22. The reply 
of the legislature of Pennsylvania declares "the number of foreigners now in office does 
not threaten any inconvenience. Out of 182 Reiiresentatives in Congress it is believed 
that there are not more than four who were born out of the limits of the United States^ 
and 1^ the Senate not one," . 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 31 

This proposition was first suggested by the conventions that 
ratified the Constitution in Virginia, New York, and North 
Carolina,^ and the attempt was made in both branches of the 
First Congress to add such an amendment to the series about 
to be sent to the States for their ratification.^ Amendments 
of this nature were also introduced in 1793, 1808, 1810, and 
1818;^ and from 1820 until the early " forties'' similar amend- 
ments were submitted at ahnost every session of Congress. 
The last one proposing a general disqualification from all offices 
was presented in 1850.* 

The amendment proposed by the legislature of Tennessee in 
November of 1825 is of especial interest, as it was evidently 
prompted by the utterances of Andrew Jackson.* When Ten- 
nessee, m the fall of 1825, nominated him as a candidate for 
the Presidency for the election of 1828, Jackson immediately 
departed from Washington, and in a speech before the Ten- 
nessee legislature resigned his office of Senator in order that 
he might not be open to the suspicion of using that office to 
promote his candidacy. At the same time he declared he 
would "impose a provision upon the Constitution rendering 
members of Congress ineligible to office under the General 
Government during the term for which elected and for two 
years thereafter," except in the case of judicial office.^ "The 
effect of such a provision," said he, "is obvious. By it Con- 
gress would be free from that connection with the executive 
department which at present gives strong ground of appre- 
hension and jealousy on the part of the people. If the change 
should not be obtained and important appointments continue 
to devolve upon Congress, corruption will be the order of the 
day."' 

However desirable, theoretically, Jackson believed this 
change to be, in practice he did more to create the need of 



>App..No8.29,62.81. 

* App., Nob. 199. 275. 

» App., No8. 317, 387, 400, 401, 479, 

«App.,N08.493, 511. 516, 544, 546. 549, 569, 581, 595, 612, 642, 652, 655,662,670,678,680,696, 
715.723,727.749,755^,703. 

* App., Ko. 549. See also similar resolutions of the legislature of Tennessee of 1827, 
arraigning Adams and Clay, which -were unanimously adopted by the house of repre< 
sentatives and only two dissenting votes in the senate. App., No. 581a. Kiles' Kegistei, 
XXXII, pp. 161, 183-186, 198. Counter resolutions of disapproval from the legislatures 
of Indiana, Ohio, and Maine. Ibid., xxix, pp. 369, 429. 

* Kiles' Begister, xxrx, 125, 155-157. Sumner's Jackson, p. 104, note 2. 
'Jbid. 



32 AMERICAN HISTORICAL ASSOCIATION. 

sncli an amendment than all his predecessors.' In this con- 
nection it is interesting to read what recommendation he made 
in his first message, of December 8, 1829. Evidently having 
in mind his previous recommendation, and conscious of his 
own inconsistency, he writes: "While members of Congress 
can be constitutionally appointed to office of trust and profit, 
it will be the practice, even under the most conscientious 
adherence to duty, to select them for such stations as they are 
believed to be better qualified to fill than other citizens; but 
the purity of our Government would doubtless be promoted by 
their exclusion from all appointment in the gift of the Presi- 
dent, in whose election they may have been officially concerned. 
The nature of the judicial office and the necessity of securing 
in the Cabinet and in diplomatic stations of the highest rank 
the best talent and political experience should, perhaps, 
except these from the exclusion."^ 

It is somewhat surprising to find Clay in 1841 presenting a 
proposition similar to the one Jackson had been led to suggest 
because of Clay's acceptance of office in Adams's Cabinet. But 
times had changed. Clay was now attacking Tyler, the fear 
of Executive encroachments having taken full possession of 
him.^ His State likewise indorsed his views, and presented to 
Congress a resolution in favor of this restriction.^ 

The length of the period of ineligibility proposed varied 
somewhat. A large number provided that a member should 
be ineligible only during the term for which he was elected; 
others assigned a more extended period, varying from three 
months to two years thereafter. Still others provided that 
the ineligibility should last until the expiration of the Presi- 
dential term during which a person shall have been a Senator 
or Eepresentative.*^ One even of a retrospective character was 
introduced in 1822 by Mr. Blair of South Carolina, which 
provided that "no one should be appointed by the President 



* *'Of his first Cabinet, three were membera of the Senate and one of the House; and 
Mr. Van Buren bad been a Senator up tu the let of January preceding. Many other 
members of Congrcaa received important appointments. Bliring the first six monthH of 
General Jackson's Administration more Federal appointments devolved upon members 
of Congress than had before fallen to their lot from the commencement of the Govern- 
ment, in 1789, down to the 4th of March, 1829— forty yeiirs." Sjilmou. Appointing Power, 
p. 55; Sargent,!, p. 164; Am. Register, v, 20; xxxviXiles" Keg., p. 207. For protocol of orig- 
inal Jackson men arraigning him, see XL l^ilen, p. o87-389. 

'Statesman's Manual, p. 702. See Benton's Tliiriy Years' View, i, p. 86, for comments. 

» App., No. 715. Schurz, Henry Clay, II, p. 222. 

*App.,No.727. 

»App.,Nos.560,655. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 33 

to any office who shall have been a member of either House of 
Gougress in the last two years preceding the election of the 
President." * This was doubtless intended to prevent the Pres- 
ident rewarding a member of the preceding Congress who had 
been especially active in working for his interests in the Con- 
gressional caucus of the party, which at this time usually made 
the nomination of the candidates of the different parties for 
the Presidency and the Vice-Presidency. 

Some of these resolutions made exceptions in favor of cer- 
tain positions, such as appointments in the Army or Navy, 
while others, similar to the one introduced several time^ by 
Mr. Underwood of Kentucky, permitted the heads of the 
Departments to be selected from Congress.^ 

The above propositions were of a very comprehensive char- 
acter, some excluding members of Congress from all offices, 
both civil and military ; the majority, however, applying only to 
the civil offices. There were in addition a few amendments 
proposed, the provisions of which were less stringent than the 
preceding. One, introduced in 1846 by Mr. Bagby of Ala- 
bama, to render members of both Houses ineligible to a Cabinet 
position ; ^ also, a group of three amendments providing that no 
member of either House shall be eligible to the office of Presi- 
dent or Vice-President.* The first of these resolutions was 
introduced by Mr, Bagby in connection with the above-men- 
tioned amendment. It extended the time during which a 
member was ineligible to four years after the expiration of the 
term for which he was elected. One of the remaining two 
which were introduced in 1872, fixed the end of the i)eriod of 
ineligibility at two years after the expiration of the term.^ 

In addition, Mr. Turner of Kentucky has twice proposed, 
during the later seventies, an amendment prohibiting the 
appointment of any Senator or liepresentative, during the 
term for which he was elected or two years thereafter, " to 
any civil office of profit under the United States which was 
created or the emolument of which was increased during the 
said tenh."^ 



'App'.,Ko. 511. 

» App., No8. 540, 560, 612, 652, 678, IZi, 756d, 763. 

»App., No. 747. 

« App., Nos. 746, 1347, 1351. 

»App.,No 1347. 

•App.. N08. 1474, 1482. 



H. Doc. 353, pt 2 3 



34 AMEKICAN HISTORICAL ASSOCIATION, 

13. COMPENSATION OF MEMBERS 

The Constitution left the subject of the compensation of 
members to be regulated by law. In order to prevent mem- 
bers from arbitrarily increasing their own salaries, three of the 
State conventions included among the amendments they pro- 
posed a provision that no alteration of the existing rate of 
compensation should at any time take ettect before the next 
election of Representatives.^ In the First Congress, Mr. Madi- 
son also suggested a similar amendment/'^ which, slightly 
changed,^ passed both branches of Congress, and was one 
of the twelve submitted to the States for ratification.^ This 
proposition, together with that in regard to apportionment of 
Representatives,* failed to receive the approval of a sufficient 
number of States to secure its adoption.*^ 

The modest per diem adopted by the First Congress ao its 
salary did not arouse fears of extravagance. Accordingly no 
further amendment was proposed on the subject until 1810. 
In view of the increase of the revenue after the war of 1812, 
the Fourteenth Congress saw their opportunity to push through 
a new compensation bill, and did so, ^' with a haste altogetlier 
unusual," in the session of 1815-16. The new bill changed tlie 
compensation of members, which had been fixed by the First 
Congress at $6 per day and $6 for every 20 miles of estimated 
journey, to $1,500 a year, which was declared to be the correct 
equivalent of $6 per day. Others declared that it more than 
doubled that amount. The popular indignation aroused by 
this bill was something remarkable, and the enjbire country 
expressed its displeasure at the Congressional election that 
fall by failing to return an unusually large number of their Rep 
resentatives, some of whom were Ictadiug members.' Upon the 
reassembling of Congress, Mr. Barbour of Virginia introduced 
a resolution proposing an amendment similar to that which 
failed to receive the approval of the States." The popular disap 
proval did not disappear at once. A similar resolution passed 

» Virginia, New York, North Carolina. App., Nos. 43, 58, 96. 
*App., No. 129. 
■App., Now. 154, 216. 
«App., No. 243. 

* See par. 22. 

"Katifled by Delaware, South Caroliua, North Carolina, Maryland, Vermont, Virginia- 
six States; r^eoted by flve« See App., No. 243. 

7 "The Fourteenth Congress for ability, energy, and usefulness never had a superior," 
yet they received "the severest popular robuke ever visited on a House of Keprescuta 
lives." Adams, Hist, of IT. S., Vol. ix, p. 138. McMaater, nr. pp. 357-362. 

* App«, No. 458. In 1818 Congress repealed the unpopular act and passed u law hxiu^ 
the salary at $8 per day and $8 mileage i'or every 20 miles. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 35 

the Massachusetts legislature by large majorities, and the leg- 
islature of Tennessee presented one of the same purport to the 
Fifteenth Congress, which aroused considerable discussion in 
the Senate over its reception,* Three propositions were pre- 
sented in 1822. The first of these was similar to those pre- 
viously introduced; the second went further and forbade fixing 
the pay of members of Congress at a greater sum than that 
adopted by the First Congress; the third provided that the 
compensation should be fixed decenially, after the new appor- 
tionment of Representatives.'^ 

'No amendment dealing with this subject was again pre- 
sented to Congress until after the passage of the well-known 
"salary grab" act of 1873.^ At the opening of the next Con- 
gress five amendments similar to the one sent out to the States 
by the First Congress were immediately introduced.* Instead 
of acting upon these resolutions this Congress rei>ealed the 
obnoxious law, and with slight modifications revived the act 
previously in force, which has not been changed since.^ 

14 OATH TO THE CONSTITUTION. 

To the clause in the Constitution providing for an oath,^ only 
one of the States suggested an addition. The New York con- 
vention, evidently desiring some guaranty that the rights of 
the States should be protected, recommended that the Sena- 
tors aad Representatives and other oflicers of the United 
States should be bound by an oath not to infringe or violate' 
the Constitution or rights of the respective States.' Another 
rather minute objection was phrased in an amendment sug- 
gested in the First Congress, which proposed to insert in the 
provision in the Constitution the word "other" between "no" 
and "religious."^ The idea that the taking the oath was in 
itself a religious test seemed to find no favor. 

. ■App.,No8. 458a, 473. 

2 App., Nob. 510, 512, 513. The legislature of Illinois in 1821 presented a resolntion of 
(lisngreement to the proposed amendment. Annals, Seventeenth Congress, first session, 
i» 35. 

* i;nit«d States Statutes at Large, Vol. xvii, p. 486. It was retroactive, and is auflicieut 
proof that the precaution might well ^ave been taken which the First Congress proposed. 
The act of 1873 raised the salary to $7,500 and actual traveling expenses. 

* App., Nos. 1372, 1373, 1374, 1375, 1377. The senate of Ohio passed a vote, ratifying the 
amendment proposed by Congress in 1789, at this time. See post par. 180. 

* The previous act was that of 1866. The new act fixed the compensation at $5,000 a 
year and 20 cents per mile mileage. Stat. L., Vol. xiv, pp. 333, 334. 

* Art. 6, cl. 3. 
^ App., No. 76. 

'Constitution reads, "but no religious test shall ever be required.*' App., Nos. 210, 
238, 261. This suggests the case of Bradlaugh in the English House of Commons. 



36 AMERICAN HISTORICAL ASSOCIATION. 

15. CHANGING THE DATE OF INAUGURATION DAY AND THE TIME OF 

THE SESSIONS OF CONGRESS. 

The date of the expiration of the First and Second Con- 
gresses and of the iirst Administration was due to a vote of 
the Congress of the Confederation of September 13, 1788, fix- 
ing the date the new Congress was to begin. More than a 
score of resolutions have been introdaced proposing a change 
in the commencement or expiration of the official term of Con- 
gress or the date of Inauguration Day. The inconvenience 
of the arrangement of the sessions seems to have been early 
felt, as Senator Burr of New York, in 1796, proposed that the 
date for the expiration of the term of Congress should be 
changed to the 1st day of June.^ The amendment presented 
by Mr. Hillhouse, in 1808, to change the term of Representa- 
tives to one year, which is discussed elsewhere, provided that 
their term should expire on the first Tuesday of April.* With 
one unimportant exception,^ no other change was suggested 
until 1876. Since that time there have been eighteen amend- 
ments proposed.^ Several attempts have been made to set 
the date for the commencement of the Congressional term on 
the 31st day of December, or some day in the first week of 
January. 

The desire to transfer Inauguration Day to a more favorable 
season of the year led to the introduction of a proposed 
amendment in 1876, fixing upon the 1st day of May.* In more 
recent years the above reason, coupled with the desire to bring 
the Inauguration Day upon the one hundredth anniversary of 
the inauguration of Washington, and thus appropriately round 
out the first century of our history under the Constitution, led 
to the presentation of several resolutions making provision for 
such a change. Two such resolutions passed the Senate unani- 
mously; the first, introduced in 1886 by Senator Ingalls, desig- 
nating April 30 as the commencement of the official term of 
the Executive and of the Congress; the second in 1888, pre- 
sented by Mr. Hoar, fixed upon the last Tuesday of April, 
which in 1889 fell upon the 30th of the month.« The House, 



> App., No.327. 

« App., No. 391 . See poet par. 26. 

* Proposed in 1840 to fix the Ist of December as the day for the commencement of the 
term of members. App., No. 706. 

« App., Nos. 1416, 1418, 1440, 1470, 1571, 1625, 1641. 1676. 1681, 1682, 1685, 1686. 1691, 1703, 1707. 
1735, and 1672. The latter proposed to ^ve CongresH power "to establish the beginning 
of the PreRidential and Congressional term.*' 

•App., No. 1416. 

« App., Nos. 1676, 1691. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 37 

however, failed to concur in either of these propositions. The 
first was never reported from the committee to which it was 
referred ; the second gave rise to an interesting discussion. At 
about this same time a resolution which had been introduced 
by Mr. Grain of Texas three times since 1886, was reported 
favorably.^ It proposed an amendment to the Constitution 
substituting the 31st of December for the 4th of March as the 
commencement and termination of the official term of mem- 
bers of Congress, and provided that Congress should hold its 
annual session on the first Monday of January. Mr. Crain now 
wished to have the provisions of his amendment incorx)orated 
in the Senate resolution, and advanced an interesting argu- 
ment in favor of the change. He showed that under the 
present system a Representative does not enter upon the dis- 
charge of his duties until thirteen months after his election, 
and then frequently comes to his office to find that the issues 
upon which he was elected have been determined and settled 
by the second session of the previous Congress. Thus, Repre- 
sentatives who have been defeated at the polls defy the will of 
the people by legislating in accordance with a policy that had 
been adopted before their repudiation. 

Mr. Crain further dwelt upon the fact that under the pro- 
X>osed plan there would be no election between the two ses- 
sions of a Congressional term ; that there would be no short 
term, and no necessity for extra sessions; Representatives 
elected in November would begin to perform their duties early 
in the next January, and thus would come fresh from the peo- 
ple and be in touch with the people. The necessity of a Rep- 
resentative's answering to his constituents after the second 
session would tend to make him as faithful, zealous, and effi- 
cient as in the first session. 

Some speakers questioned the need of a constitutional 
amendment to change the date of Inauguration Day, as the 
present date, the 4th of March, is fixed by law and not by the 
Constitution. The greater number, however, considered this 
necessary, but thought that the object desired by Mr. Crain 
could be obtained by law.^ It was further shown that by the 
Senate amendment the short session would be made into a 
long one, and thus give Congress more time to transact its 
business. The House finally refused 4x) suspend the rules and 
pass the resolution by a vote ot 129 yeas to 128 nays. Party 



I App., Nos. 1082, 1686, 1707. 

*S66 Manual of the Rules and Practice of the House of Representatives, p. 428. 



38 AMERICAN HISTORICAL ASSOCIATION. 

lines were not drawn in the division.' Later in the same 
session Mr. Grain presented a resolution containing the Senate 
proposition conpled with his own, but the motion to suspend 
the rules and pass was rejected.^ 

Both the suggestions deserve to be incori>orated in the 
Constitution. The great practical inconvenience of closing 
the second session of Congress on the 4th of March and the 
desirability of abridging the present long interval which 
elapses between the time of the (choice of Representatives and 

• 

the time of their entering upon the duties of their office 
becomes more evident from year to year. In addition to the 
sentimental reasons for changing the date of Inauguration 
Day to the 30th of April, the inclemency of the weather of 
early March often seriously interferes with the exercises of 
the day, which has become a gala day, thus exposing 
thousands to the dangers incident to that season of the year.*^ 
Only one resolution has been submitted proposing to do 
away with the annual sessions of Congress. This was in 
1878, and made provision for biennial sessions. The proposed 
change was doubtless suggested by the practice of the great 
majority of the States and the increasing fear of the danger 
of overlegislation.'* 

16. EXTRA SESSIONS OF CONGRESS: QUORUM AND VOTE. 

Among the amendments proposed by President Grant in his 
annual message at the opening of Congress in December, 1873, 
was one providing that when an extra session shall be convened 
by Executive proclamation legislation during the continuance 
of such extra session shall be confined to such subjects as 
the Executive may bring before it.^ There is no record to 
show that Congress ever considered the subject. The reasons 
which influenced the President in making this recommenda- 
tion were evidently a desire to make the term of the extra 

> For discussion, see Congressional Record, Fiftieth Congress, first session, pp. 1845-1353. 
*App., No. 1719. Mr. Grain has proposed the same amendment in eaoh Congress since. 

In the Fifty -second Congress it was reported favorably, bat rejected. Record, Fifty- 
second Congress, second session, pp. 483-500. Some objected to this plan beoanse it 
would bring in a new Congress before the new President, and thus they would canvass 
the vote for President 

> It is said that General Harrison's death resulted from a cold caoght at his inaugu- 
ration. 

' App., No. 1470. Extra sessions were provided for. All of the States saveilve have 
biennial sessions. Bryoe, Vol. i, p. 487. 

*App., No. 1371. A common provision in StAte constitutions in eleven States. See 
Davis, John Hopkins University Studies, third series, pp. 479, 528. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 39 

session as sliort as possible and to gaard against overlegis- 
lation, for he says: ''One session in each year is provided 
for by the Constitntion, in which there are no restrictions as 
to the subject of legislation by Congress. If more are required, 
it is always in the power of Congress during their term of 
office to provide for sessions at any time," 

The constitutional quorum — a majority of all the members 
in either House* — was larger than is usual in parliamentary 
bodies, but no serious inconvenience was felt, and there has 
been no effort to change the provision of the Constitution until 
nearly the close of the first century of its history. In the 
Fiftieth Congress, Mr. Wheeler of Alabama introduced a reso- 
lution to amend the Constitution so that ^^ one- third of the 
members of each House shall constitute a quorum," instead of 
the existing requirement — a majority.' The need of some 
change was suggested by the growth in the recent Congresses 
of the practice of *' filibustering," which has reached such pro- 
portions as to seriously interfere with business. The claim of 
no quorum has been one of the favorite means of " filibuster- 
ing." Since the Fifty- first Congress, rules have been adopted 
to check this practice in the House of Representatives.^ 

Another proposition, made by the ratifying conventions in 
New York and Rhode Island, would, had it been adopted, put 
an engine of irresistible power into the hands of the fllibus- 
terers, for the clause which provides that the yeas and nays 
shall be entered on the journals at the desire of one-fifth of 
those present was to be so changed that two members in either 
House might require it.* 

17. DLSCIPLINB OF MEHBERS OF CONGRESS. 

The Constitution adopted the English and Cabinet practice 
of relieving members from responsibility for their utterances 
in Congress before the regular courts, but it gave to each 
House power to discipline its own members.^ But one propo- 
sition has ever been presented to decrease that power. In 
1789, Mr. Tucker of South Carolina moved that this clause 
should be struck out.^ The ground for his motion was not 



> Constitatioii, art. 1, nee. 5, d. 1. 
«App., No. 1728. 

* Manual and Digest, Fifty-flrst Congress, seoond session, Rule xv, cl. 3, p. 527. 
« App., No6. 60, 124. 

* Constitution, art. I, nee. 5, cl. 3. 
 App., No. 198. 



40 AMERICAN HISTORICAL ASSOCIATION. 

stated, but probably it was that a member should be responsi- 
ble only to his State or constituency.* 

18. PUBLICATION OF THE JOURNALS. 

The clause in the Constitution which provides that the jour- 
nals of each House shall be published from time to time^ 
seemed too indefinite to some of the ratifying conventions. 
Four of the conventions, therefore, included in their series of 
proposed amendments one which required their publication 
'^at least once in every year.'' ^ An unsuccessful attempt was 
made to add to the series of amendments recommended by 
the First Congress such a proposition.'* Subsequent history 
has shown that the fear that the proceedings of Congress 
might be withheld for some time was groundless. The jour- 
nals of each House have appeared annually, except that the 
proceedings of secret sessions have been made known only at 
the later discretion of the House concerned. In addition to 
the journals, the official debates of Congress since 1833 have 
been published by the Government.^ 

19. THE HOUSE OF REPRESENTATIVES. 

The House of Representatives, as the most numerous of the 
two constituent elements of Congress, and as the branch 
which springs most directly from the people, has been tlie 
object of many propositions for amendment. Some 150 amend- 
ments have been proposed to the provisions of the Constitu- 
tion relative to this branch of Congress. Many attempts have 
been made to alter the qualifications of its members, to change 
their number and apportionment, and to control their election.^ 

20. QUALIFICATION OF MEMBERS. 

In addition to the resolutions proposing to alter the consti- 
tutional qualifications of members of either branch of Con- 



I From 1789 to 1870 there were seventy-six attempt.-4 to discipline members of Congress. 
Of these twenty-six were cases of abusive lanj^uage or disorderly behavior on the floor of 
the House and tweuty-flve for treason. Oat of this number the actual censures for all 
causes in both Houses have been ten and the expulsions eighteen. Stated by Mr. 0. F. 
Gettemy, a member of the Historical Seminary, Harvard University, 1890-91, from his 
rescvch in the journals. 

* Constitution, art. 1, sec. 5, cl. 8. 

> Virginia, New York, North Carolina, Rhode Island. App., Nos. 30, 59, 82, 113. 
« App., No. 274. 

A The Congressional Globe, 1833 to 1873 ; the Congressional Kecord, 1873 to the present 
time. 

* No proposition has been made to take the right of election from the people. See Story, 
I, p. 400. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 41 

gress,^ two others have been introdaced applying only to the 
House. In 1806, owing to the defeat of a bilP to exclude 
<< contractors or any one participating in any way in the profits 
of such contracts" from the House of Bepresentatives, because 
many believed it was not within the conix)etency of Congress to 
add to the qualifications for members required by the Gonsti- 
tution,^ an amendment with the same end in view was intro- 
duced/ It is evident from the references in the course of the 
debate that persons holding Government contracts were mem- 
bers of Congress. The danger and evil of this practice was 
urged by Randolph and others, but the only thing accom- 
plished was the calling upon the Postmaster-General for a list 
of all persons holding mail contracts.^ Two years later a 
somewhat similar provision was introduced, which applied to 

the Senate as well." 
One resolution has appeared bearing upon the qualifications 

of residence. By the Constitution the only limitation was that 
the member should be a resident of the State in which he was 
chosen'' — a clause suggested by the parsimonious practice of 
the States in the old Congress of selecting x>6rsons who lived 
near the seat of government as their agents. The ratifying 
convention of New York proposed as an amendment a resolu- 
tion to the effect that the legislatures of the respective States 
may provide by law that a Eepresentative must have been an 
inhabitant of the district he represents for at least one year 
immediately preceding his election.^ Congress does not appear 
to have taken into consideration the subject of this amend- 
ment, but some of the States have enacted laws requiring the 
Representative to be a resident of the district he represents. 
The constitutionality ot such laws is so doubtful that the Mas- 
sachusetts law was repealed. It amounts to the imposition by 
the States of a qualification not si>ecified in the Constitution.^ 
Positive law has in any case been little needed since both in 



VAiito par. 11. 

* 111 trod uced by Randolph. AnnalB, p. 508. 

* Annals, p. 880. 

* By Mr. Kewtun . App., No. 374. The example of England (see 22 George III, c. 45) and 
possibly the presence of some of Burr's relatives may have suggested it. Mr. Newton, 
however, said "he would wish to see an American Congress composed of very dilferent 
material from a British Parliament.'* Annals, p. 894. 

* Annals, pp. 761, 828. 

* App., No. 387. Ante par. 11. 
'Constitution, art. 1, see. 2, cl. 2. 

* App., No. 77. 

'Story, I, p. 447, note 1. Foster, Com. on the Const, i, p. 368, note 10. 



42 AMERICAN HISTORICAL ASSOCIATION. 

the State and the national elections constituents usnally 
refuse to choose nonresidents. One case of the choice of a 
Representative not a resident of the district occurred recently 
in Massachusetts,^ but in general the English practice in this 
liarticular has not been favored.^ 

21. INCOMPATIBILITY OF OTHER FUNCTIONS FOR REPRESENTATIVES. 

Various amendments excluding members of either branch of 
Congress irom civil appointment have been considered else- 
where.^ The loss by Jackson of the election in the House in 
1825, together with the alleged bargain between Clay and 
Adams, by which Adams was given the Presidency and Clay 
a position in the Cabinet, called out a proposition of a less 
sweeping character. 

In the following year Mr. Powell of Virginia introduced 
the first resolution on this subject. It declared that no Kepre- 
sentative, in the event of the election of President by the 
House of Representatives, should be capable of receiving an 
appointment to any office, where the power of nomination is in 
the President, for the term of three years thereafter.* In the 
next Congress two other amendments were presented to tlie 
House, providing that under the same circumstances no mem- 
ber shall, during the continuance of that President in office, 
be appointed to any office under the authority of the United 
States.^ All three of these resolutions were buried in com- 
mittee, and no similar proposition has since been proposed. 

22. APPORTIONMENT OF REPRESENTATIVES. 

In order to insure the adoption of the Constitution by the 
slaveholding States, it was found necessary to give to them a 
partial representation for their slave population. Accordingly 
it was agreed that *' Representatives and direct taxes should 
be apportioned among the several States" '* according to their 
respective numbers, which shall be determined by adding to 
the whole number of free persons, including those bound to 
service for a tenn of years, and excluding Indians not taxed, 
three-fifths of all other persons."^ The enumeration was to be 



 In a by-election in April, 1893, William Everett, of the Eleventh Massachusetts dis- 
trict, was elected by the Seventh district. 
» Brjce, I, pp. 482-438. 
*Ante par. 12. 

* App., No. 557. Except in case of war. 

* App., ^os. 581, 595. 

•Art. 1, sec. 2, cl. 3. Story, i, pp. 448-455. See Hinsdale's Ain. Govt., Chap, xviii for 
niothods employetl. Foster, Com. on Const., i, i»p. 393—397. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 43 

made once in every ten years, and the number of liepresenta- 
tives was not to exceed 1 for every 30,000, but each State 
was to have at least one Eepresentative. 

Dissatisfaction has, however, been expressed with these pro- 
visions at various times, and recourse has been had to numerous 
attempts to secure their amendment. The proi>ositions to 
amend this section of the Constitution may be divided into 
tour well-defined groups: First, the attempts made in the First 
Congress to establish a permanent ratio for the apportion- 
ment of Representatives; second, the few proposals, made 
with one important exception in the earlier years of this cen- 
tury, to strike out the chiuse granting partial representation 
for slaves; third, the attempt made in 1860-61 to incorporate 
into the Constitution a clause which should guarantee the 
slave States against any change in the method of apportion- 
ment without their consent; and fourth, the proix>sitions 
growing out of the changes wrought by the civil war and 
culminating in the fourteenth amendment. 

(1) The ratifying conventions of five of the States^ were not 
satisfied with the simple provision in the Constitution, but 
desired that the ratio should be fixed in the organic law itself 
rather than left to the discretion or the caprice of Congress. 
All five propositions agreed in requiring 1 Representative to 
every 30,000 persons, until the whole number of Represent- 
atives amount to 200; three of the conventions suggested 
further, that above 200 the number should be continued or 
increased, as Congress shall direct. 

In response to this general expression, Mr. Madison intro- 
duced in the First Congress an amendment wliich made provi- 
sion for a fixed ratio.^ The number placing a limit upon the 
size of the House was left in blank, to be filled in as the 
united wisdom of Congress should suggest. The resolution, 
as reported by the special committee to which it had been 
referred, provided that after the number amounts to 100 ''the 
proportion shall be so regulated" "that the number of Repre- 
sentatives shall never be less than 175."' The resolution was 
considered for some days, and various attempts to amend were 
made.^ It finally passed the House in nearly the form sug- 
gested by Fisher Ames. This made provision for the expected 

* App., Nos. 2, 15. 27, 46, 79. MasnachasottM, New Hampshire, Virginia, Nmv York, North 
Carolina. 

« App., No. 128. 
«App., No. 149. 

* App., Nos. 160, 151, 152, 153. 



44 AMERICAN HISTORICAL ASSOCIATION. 

growth iu populatiou, and was calculated ^^to prevent a too 
rapid increase of the number of members."' The Senate so 
amended the resolution that a greater increase in the growth 
of the population was rei^uired for additional representation.^ 
A conference committee was appointed, and they reached a 
compromise which slightly changed the form of the resolution 
as passed by the llouse.^ The necessary two-thirds majority 
was obtained, and the amendment went out to the States as 
one of the set of twelve.^ It read as follows: "After the first 
enumeration, there shall be 1 Representative for every 30,000 
until the number shall amount to 100, after which the x>ropor- 
tion shall be so regulated by Congress that there shall be 
no less than 100 Representatives nor less than 1 Represent- 
ative for every 40,000 persons until the number of Repre- 
sentatives amount to 200, after which the proportion shall be 
so regulated that there shall not be less than 200 Repre- 
sentatives nor more than 1 Representative for every 50,000 
persons."* 

Ten of the twelve passed the appointed ordeal. This article 
only lacked the indorsement of one State to make the requisite 
three-fourths necessary to secure its incorporation into the 
Constitution.* For some reason the Virginia legislature rati- 
fied this article nearly two months before indorsing the rest 
of the series."' It is an interesting fact that Pennsylvania, 
although ratifying March 10, 1790, all the amendments except 
the first and the second, subsequently recoi^sidered her action, 
for October 26, 1791, President Washington sent a message to 
("ongress announcing the ratification of the first article by the 
legislature of that State." 

Delaware alone of all the States that took any action upon 
the amendments, refused to ratify this article.® The legisla- 
tures of Massachusetts, Connecticut, and Georgia do not 



'App., No.215. 

* App., Noa. 241, 242. 

»App., No. 295. It RubBtitutecl "more" for "lesM" In the danse "nor leas than 1 
ReprencDtative for every 50,000 jKjrHons." 
< It was article 1 of the series. 

* The present ratio is 1 Kepresentative for 173,901 persons. Cong. Directory, 54 Cong., 2 
Sess., p. 207. App. No. 296. 

•The following States ratified in the order given: New Jersey, Maryland, North Caro- 
lina, South Carolina, New Hampshire, New Yorlc, Rhode Island, Vermont, Yirginia, and 
Pennsylvania. See App. No. 295 for list and dates of ratifications. 

'Virginia acted on this amendment October 25, 1791, and on the others the 16th of the 
following Deoember. 

* App., No. 295. Article 2 was in regard to compensatitin of members. 
•Ibid. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 45 

apx)ear by the records to have ratified any of the series pro- 
posed by Congress. The assent of any one of them would 
have made this article a part of the Constitution.^ The failure 
of Massachusetts to take decisive action upon these amend- 
ments is the more striking inasmuch as her constitutional 
convention had been the first to propose a series of amend- 
ments, one of which was upon this very subject, the apportion- 
ment of Representatives.* 

It has been the almost universal opinion of historians that 
this amendment was most wisely rejected. The decennial 
apportionment bill is usually settled aside from party grounds. 
The last apportionment bill, which was passed by the Fifty-first 
Congress without serious opposition, is a recent proof of the 
truth of this statement.^ 

(2) The compromise which arranged the ^Hhree- fifths ratio" 
was always a thorn in the flesh of New England, and after 
the annexation of Louisiana made the admission of new slave 
States probable, they felt that immediate action was necessary. 
They believed that the influence of New England, already 
immeasurably decreased, would soon be of so little weight 
that her interests would be utterly disregarded, unless steps 
were at once taken to do away with the existing basis of rep- 
resentation, which gave the South so large a voice in the 
National Council.* Accordingly early in the summer of 1804, 
the legislature of Massachusetts passed a resolution recom- 
mending that the Constitution should be amended in such 
manner <^that Eepresentatives and direct taxes may be 
apportioned among the several States according to the num- 
ber of their free inhabitants, respectively." Later in the 
same year Senator Pickering of Massachusetts presented 
this amendment to Congress.^ According to the custom the 
resolution of the Massachusetts legislature had been sent to 
the legislatures of the other States. All the States but two 
answered immediately, and without exception condemned the 



' No record in the State Departmeiit of their action. See post, par. 23. 

* The Federalist opposed the "Bill of Bighte " as unnecessary. This proposition was 
disagreed to by both the Massachnsetts senate and house of representatlTes on their 
preliminary consideration, but final action does not seem to have been taken. Journals 
of the Senate, Massachusetta. vol. 10, p. 102; Journals of the Bouse of Bepresentatives, 
Massachusetts, vol. 10, pp. 209, 217, 218. See post, par. 97, final note. 

*The proposed amendment would have enabled Congress to limit tiie number of the 
House of Representatives. 

'See Kar. and Critical Hist., vil, p. 547, note; Ames, Works, I, p. 323; Quincy's speech, 
Am. Orations, i, p. 145; Adams, Doc. of New Eng. Federalism, pp. 52-55, 77, 78, 148, 362 

• App., Nos. 363-364. It was called the " Bly amendment." 



46 AMERICAN HISTORICAL ASSOCIATION. 

proposition. " The joy of the liepublicaus rose as the reply of 
the States came in," for they claimed that the proposition had 
not been proposed in good faith as an amendment to the Gon- 
stitution, but ''was sent forth to gather public opinion on the 
fitness of dividing the Union." ^ 

Again, in 1815, the similar resolution upon this subject 
included in the series of amendments proposed by the Hart- 
ford convention^ was presented at the reciuestof their respec- 
tive State legislatures by the members from Connecticut and 
Massachusetts.^ It is evident that tliis was prompted by the 
feeling that the declaration of war and other measures inimical 
to New England were carried through Congress by means of 
the additional representation given to the Southern States for 
their slave population.^ None of the other New England 
States indorsed these amendments, and the legislatures of 
eight States at least passed resolutions of disapproval.* The 
return of peace rendered these propositions of no importance, 
and they were only recalled to reflect discredit upon their 
framers. 

In 1843 the legislature of Massachusetts passed a resolution 
proposing the same amendment, which awakened great excite 
ment not only in Congress, but also in the Southern States. 
Its introduction in the House of liei)resentative8 by John 
Quincy Adams ^ aroused a long and acrimonious debate over 

> McMaster, Hist, of U. S., Vol. Ill, pp. 44-47, i^iveB abHtract of the replicH of the other 
States. The rcsolntiona of the legislature of Georgia declared "that the ttmendment pro- 
posed bj- the legislature of MassaobuBetts to the Constitution hasiU origin inii^ustice; and 
if adopted will disorganize the Union," "They therefore call upon the justice and ningua 
nimity of the several States to oppose a measure having for its object the destruction 
of that Charter of Independence which was framed in wisdom and which they trust will 
receive the sanction of ages." Archives of Mass., House Misc., 5927. 

* For other amendments proposed, see ant« par. 11, post pars. 5G, 93, 140, 157, 162. 
s App.,No8.424,432,440. 

* No other Stat* adopted these resolutions. For cautious action of Khode Island and 
New Hampshire, see Niles' Register, Vol. viil, pp. 37,348; action of Vermont, ibid., vii, 
p. 167. See also Adams, New Eng. Fed., pp. 315-320. 322, 407, 408, 424. 

* Vermont, New York, New Jersey. Pennsylvania, Virginia, Ohio, Tennessee. Louisi 
ana. Niles' Register, Vol. vill, pp. 16,65-70,99-101; Vol. IX, pp. 434, 451; Vol. x, 177; Vol. vii. 
Sup., p. 49; Annals of Cong., Fourteenth Congress, flrnt session, pp. 89, 132, 365, 876, 932 : 
H. J., pp. 278, 297, 672. Mass. Archives, 8157, 8161, 8181. 8184, 8187. The reply of the le^ 
islature of Pennsylvania declares the prox)ortion of shnes to whites in 1790 to have been 
one-flfth, in 1810 as not quite one -sixth, and that the equal representation in the Senate 
more than compensates the North for the slave representation given to the South. It 
further declares *' that any alteration In the basis of representation should be a complete 
one, such as would place the real power of tlie Government on the basis of its white 
population and render the numtjer not merely of Representatives, but of Senators |>ro- 
portional to the free white inhabitants of the ITiiion." Niles' Register, Vol. \T1I, pp. 65-70 

«App.,N08. 733-734. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 47 

the question of its being received, which Adams characterized 
in his diary as ^' the most memorable debate ever entertained 
in the House." ^ The resolution was finally received and 
referred to a select committee. In the meantime the new leg- 
islature in Massachusetts adopted resolutions proposing the 
same amendment ; thus two successive legislatures, ^' first when 
the Van Buren party were in majority " and again "when the 
Whigs were in the majority," had approved of this measure.* 
Tlie attempt was made to present the new resolution to both 
Houses of Congress on January 23, 1844.^ The House thrice 
refused to receive them. In the Senate the motion to receive 
and print was the signal for a fierce denunciation of the Com- 
monwealth of Massachusetts by the two Senators from Ala- 
bama. The one stigmatized it as the " Hartford convention 
amendment," and inquired " if it were possible for such an 
amendment to be made, could anyone believe that the Fedenil 
(fovernment would last twenty-four hours after it was made." 
" Was Massachusetts desirous of dissolving the Government? 
It so appeared, for she seemed to feel that there was contami- 
nation by the union which existed between the two sections of 
the country,"* Senator Bagby said: '*If the legislature of 
Massachusetts thought proper to lay the ax at the foot of the 
very root of the principles which sustain our institutions, upon 
it let all the responsibility rest." He further declared that 
they were now called upon ^' to give circulation to resolution^" 
*' the very character of which were seditious and incendiary."* 
The Senate thereupon refused to print the resolutions by a 
vote of 14 to 26. 

A short time after this counter resolutions were presented 
from the legislatures of Georgia, Alabama, and Virginia. The 
Virginia rlBSolution, in part, declared : ^' That we can not n^gard 
these resolutions as in truth a projwsition to amend the Fed- 
eral Constitution, but virtually one to dissolve the Union," ^ 
and "we regard this attack, by the highest constitutional 



' Mem. of J. Q. Adaina, xi, p. 455. It would aeem that, a similar resolution h:ul been 
previously introduced from Vermont, but trace of it has not been found. See remarks 
made in debate. Niles' Kcgist^r, Vol. LZ.V, p. 349. 

«Ibid., Vol. Lxvi, p.67. 

' App., No. 734a. Vote to receive in the House -was yeas 74, nays 91. 

* Senator King, Cong. Globe, pp. 179-180. 

» Cong. Globe, p. 180. 

*The petition of citizens of Haverhill. Mass., for the dissolution of the Union, pre- 
sented by Mr. Adams the previous year (January 21, 1842), may have suggested this 
answer. 



48 AMERICAN HISTORICAL ASSOCIATION. 

authority of a sister State, as in the highest degree nnjast, 
uukind, faithless to the compromises of the Oonstitation, and 
meriting the deei)est condemnation of every patriot and friend 
of the Union." The governor was especially directed by the 
legislature to return the original resolutions to the governor 
of Massachusetts.^ These resolutions were referred in the 
House ^ to a select committer, which a few days later reported 
having taken into consideration the several resolutions, and 
that they agreed with the Virginia legislature that the resolu- 
tions of Massachusetts were ^Mn truth a proposition to dis- 
solve the Union," and that no such amendment ought to be 
recommended by Congress, but ought "to be promptly and 
decisively condemned." This resolution was agreed to by a 
large minority .^ Three days later Mr. Giddings presented his 
declaratory resolutions which affirmed, "That the right of 
amendment extends as clearly to that portion of said Consti- 
tution which fixes the ratio of Federal representation as to 
any other part of the instrument. That every attempt to sub- 
vert this important right of the people should be promptly 
condemned."^ The resolution was tabled. In the meantime 
the above-mentioned reply of Virginia, together with the origi- 
nal copy of the resolutions of Massachusetts, reached the 
Massachusetts legislature. That body immediately replied, 
unanimously, in part as follows: "Kesolved, That the said 
resolves of the legislature of this Commonwealth do express 
the deliberate sentiment of the x)eopIe of Massachusetts; that 
they do, in truth and in good faith, propose an amendment of 
the Constitution of the United States; that, so far from con- 
taining a proposition virtually to dissolve the Union, they 
assert a principle which is essential to its stability and per- 
manence, and to the assertion and maintenance of which, in 
every constitutional way, the people of Massachusetts will 
always hereafter, as they now do, firmly and conscientiously 

> The text of the resolutions from Georgia, Alahama, and Virginia are to be foand in the 
Cong. CHobe, pp. 243, 342, 360-361 ; Niles' Begister, vol. 65, p. 382 ; vol. 66, pp. 13, 31. The Ala- 
bama resolntion declared: '' That the question of representation was adjusted by the con. 
vention upon equitable principles, and that Alabama will neither relinquish this right on 
the request of one State nor at the bidding of any greater number." Mass. Arch., 
No. "f". 

* For Anther proceedings in the Senate, on receiving and printing the various resolu- 
tions, and the apology of Mr. Bagby to Mr. Bates of Massachusetts, see S. J., pp. 106, 141, 
142, 153, 334 ; Coug. Globe, pp. 179-180, 243, 342, 360, 361. 

> 127 yeas to 4 1 nays. Cong. Globe, pp. 434-435. 
«Cong.GIobe,p.432. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 49 

adhere." They further adopted a resolution, similar in purport 
to the **Giddings resolution," declaring "the right of the 
people^ at their- pleasure, to alter any or all the terms and 
conditions" — with "but a single restriction" — "upon which 
the Union was formed."* These resolutions were sent to all 
the States. 

The action of the National House of Eepresentatives upon 
the original resolutions of Massachusetts was completed when 
the select committee on the same finally reported that "the 
resolution ought not to be recommended to the House," and 
the report was adopted by a vote of 156 yeas to 13 nays, and 
the committee was discharged.^ Thus closed an episode that 
clearly indicated the presence of an "irrepressible conflict." 

(3) From this time down to the civil war the Federal ratio 
was accepted as a thing inevitable. In the upheaval of 1860-61, 
many attempts were made to reassert it, and thus to induce 
the slave States to remain in the Union. Fifteen resolutions 
were introduced in the second session of the Thirty-sixth Con- 
gress proposing an amendment declaring the clause fixing the 
"three-fifths" representation for the slaves should forever be 
unamendable.'-* This proposition was first made in the House 
on the 12th of December. On the following day Andrew John- 
son introduced the same resolution in the Senate. In 1864 
Senator Saulsbury included in his series of twenty articles, 
offered as a substitute for the thirteenth amendment, a similar 
proposition.^ Kone of these passed, and the progress of eman- 
cipation of the slaves swept them away. 

(4) On the other hand, the thirteenth amendment and the 
result of the war had now put an end to that class described 
in the Constitution as "all other persons," and the question 
immediately arose. How shall the apportionment of Eepresen- 
tatives now be made to meet the changed conditions in the 
Southern States! Even before the close of the war amend- 
ments were introduced providing for a new method of appor- 
tionment of Representatives. Mr. Sumner, in February, 1864, 
proposed, as an amendment to the proposition which became 
the tliirteenth amendment, additional sections, one of which 



' Piissecl March 14, 1844, previoas to the introdaction of the Giddings reBolations. Niles' 
Register, Vol. 06, p. 67. In thia same year the house of representatives of Massachasetts 
passed stronj; resolutions against admission of Texas. See post par. 03. 

* Cong. Globe, p. 490. 

« App., Nos. 810, 829, 833, 850, 852, 852b, 874k, 878, 894g, 917, 928, 939, 950, 964, 971g. 

«App.,Nos. 1006. 1021. 

H. Doc. 353, pt 2 4 



50 AMERICAN HISTORICAL ASSOCIATION. 

provided for the repeal of the clause in regard to the three- 
fifths representation for slavea.^ It was not acted upon, but 
in the following December Mr. Sloan of Wisconsin moved in 
the House a resolution that the Committee on the Judiciary be 
instructed to inquire into ^Hhe expediency of so amending the 
Constitution that Representatives shall be apportioned among 
the several States according to their respective numbers of 
qualified electors."^ The motion was agreed to, but was recon- 
sidered and tabled.-^ In the Senate the question was called up 
again by Mr. Sumner introducing another amendment.^ Dur- 
ing the opening days of the next Congress nine propositions to 
amend the Constitution in this particular were presented. 
The first of these was by Mr. Sumner, who renewed his propo- 
sition of the previous Congress.* Messrs. Schenck, Stevens, 
Broomall, and Orth followed with resolutions of a similar 
character.^ Another, introduce^ by Mr. Hubbard, proposed 
to base the apportionment upon the qualified voters, and fixed 
an educational qualification for all voters except soldiers and 
sailors in the late war.' In these resolutions we note the 
appearance of the plan for forcing the South to extend the 
suffrage to the negro. On the 5th of January, Mr. Spalding 
of Ohio, in a very earnest speech, suggested that a series 
of guaranties should be extended to loyal men, among which 
he named an amendment to the Constitution directing <^ the 
apportionment of Representajtives and direct taxes among 
the States in such manner that * people of color' shall not be 
counted with the po])u]ation in making up the ratio, except it 
be in States where they are permitted to exercise the elective 
franchise.''^ Mr. Pike immediately introduced a proposition 
making this provision, and upon the reassembling of the 
House, on the 8th, Mr. Blaine presented a resolution in these 
words: "Representatives and direct taxes shall be appor- 
tioned among the several States which shall be included 
within the Union according to their respective numbers, which 
shall be determined by taking the whole number of persons, 
except those whose political rights or privileges are denied or 



I App., 'So. 986a. For other sections, see post piir. 108, 122. 

»App., No. 1039. 

'Shortly after Mr. Sloan introduced an amendment of the Hame purport. App., No. 104^1. 

«App., No. 1046. 

•App., No. 1047. 

^ Similar proTisioiiH to that of Sumner's amimdmeut. App., Nos. 1048, 1050, 105.3. 1071. 

'App., No. 1050a. 

»Cong. Globe, p. 133. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 61 

abridged by the constitution of any State on account of race 
or color." ^ A week later Mr. Gonkling offered a resolution 
that an ameudinent to the Constitution be submitted to the 
States in one of the two following forms: That the apportion- 
tionmeut should be made according to the whole number of 
citizens of the United States, " Provided, That whenever in 
any State civil or political rights or privileges shall be denied 
or abridged on account of race or color, all persons of such 
race or color shall be excluded from the basis of representa- 
tion;" or, "Provided, That whenever in any State the elective 
franchise shall be denied or abridged on account of race or 
color, all persons of such race or color shall be excluded from 
the basis of representation."^ These propositions of Messrs. 
Spalding, Blaine, and Gonkling foreshadowed the second sec- 
tion of the fourteenth amendment. 

The Joint Committee on Eeconstruction finally decided upon 
and reported on the 22d of January an amendment declaring 
that the Eepresentatives and direct taxes should be appor- 
tioned according to the whole number of persons in each State, 
with a proviso similar to that suggested by Mr. Conkling in 
his second form.^ The House immediately took the proposi- 
tion into consideration, and there ensued a long debate, in the 
course of which some twelve attempts were made to amend.^ 
These are indicative of the different views entertained on this 
important question. One attempt was made to insert a pro- 
viso, "that the article shall not be construed to affect the 
power of Congress to regulate the qualifications for electors 
of the most numerous branch of the legislature of the several 
States," thus implying that the Federal Government had such 
a power.^ This seems to have been an attempt to extend 
unwarrantedly the power of Congress by this negative asser- 
tion. Other attempts were made to extend the scope of the 
amendment. One such was directed against the requirement 
by some of the States of a property qualification for the fran- 
chise.^ It stipulated that "no State within the Union shall 
prescribe or establish auy property qualification which may 



'App., Ko8. 1068. 1069. 
«App., No. 1072. 

' App., No. 1077. For an abstract of the debate and legislative history of this amend- 
ment, see W. H. Barnes. History of the Thirty-ninth Congress, Chaps, xiv-xvui. 
«App.,Nos. 1079-1103. 

*Mr. Kelley of Pennsylvania. App., No. 1083. 
* Mr. Ingersoll of Illinois. App., No. 1084 ; same by Mr. Baker, No. 1082a 



52 AMERICAN HISTORICAL ASSOCIATION. 

or shall in any way abridge the elective franchise." An effort 
was also made to secure the indorsement of woman's suffrage 
in a negative form, by providing thatthe representation of any 
State should be abridged for the exclusion from the elective 
franchise of any person on account of ^^sex," as well as race 
or color.^ Another amendment substituted for the provision 
fixing as a penalty the abridgment of the representation an 
emphatic declaration that '< the elective franchise shall not be 
denied or abridged in any State on account of race or color," 
evidently assuming that Congress would have the power to 
enforce the provision.^ 

Two other amendments received extended consideration, the 
first of these, similar to a proposition introduced a short time 
previously, basing the representation upon the number of the 
electors,^ proposed that representation should be apportioned 
according to the whole number of male citizens of the United 
States who are voters;* ultimately this proposition was re- 
jected by a decisive vote. The other provided that '* when the 
elective franchise shall be denied by the constitution or laws 
of any State to any proportion of its male citizens over twenty- 
one years, the same proportion of its entire population shall 
be excluded from the basis of representation."* 

On the 29th of January the resolution, together with the 
proposed amendments thereto, was recommitted to the Com- 
mittee on Reconstruction ;*» two days later the proposition was 
reported modified to read as follows: ^^Representatives shall 
be apportioned among the several States which may be included 
within this Union according to their respective number, count- 
ing the whole number of persons in each State, excluding 
Indians not taxed : Provided, That whenever the elective fran- 
chise shall be denied or abridged in any State on account of 
race or color, the person 9 therein of such race or color shall be 
excluded from the basis of representation."^ This amendment 
was then carried by the House by a vote of 120 to 46. In the 

> Mr. Brooks of New York. App., No. 1085. 

*Mr. Eliot of Maanachusetts. App., No. 1086. Also by Mr. Lawrence, Nos. 1086-1088. 

«App., No. 1080. 

*Mr. Schenck. Only 29 votes were cast in Us favor. App., No. 1089. Three other pro- 
posed amendments based the apportionment on male citizens of the United States over 
21. Nos. 1082b, 1101, 1102. 

* Mr. Broomall of Pennsylvania. App., No. 1090. Also by Messrs. Snmner and Ashley. 
App., Nos. 1108, 1123. This would have provided for such csrps as the "Mississippi plan " 
of educational qualification, as in the recent constitutions of Mississippi and South Carolina. 

•App., No. 1079. 

Ubid. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 53 

Senate Aome foarteen attempts were made to modify the form 
of the proposed amendment. Some of them proposed that the 
words "male electors" or "citizens over twenty-one'' should 
be inserted in place of "persons."* Others, which are enu- 
merated elsewhere,^ anticipating the fifteenth amendment, con- 
templated conferring the franchise upon the negro or certain 
(classes of the African race.^ The Senate failed to give the 
amendment the necessary two-thirds vote.* A motion was 
made to reconsider, but was never called up, for the same sub- 
ject came up in a new resolution shortly after.* 

Before the Committee on Beconstruction reported their new 
resolution, eight other distinct amendments were proposed, 
four in each branch of Congress.*' The committee reported 
to the House "the composite amendment," which contained, in 
section 2, the provision for the readjustment of the basis of 
representation. The amendment passed the House May 10 by 
a vote of 128 to 37.^ Nine amendments to the section on appor- 
tionment of Eepresentatives were offered in the Senate ;° only 
one of them was accepted,^ and the entire resolution now 
known as the fourteenth amendment passed the Senate, and 
received the concurrence of the House June 13, 1866.*** 

Only seven other amendments relative to this subject have 
since been presented in Congress, all during the later "sixties." 
The majority of them were offered before the ratification of the 
fourteenth amendment, in connection with a series of amend- 
ments relating to subjects which were the outcome of the war." 
The last amendment, which was introduced by Mr. Ashley in 
1869, proposed to give to the minority proportional represen- 
tation in the House of Eepresentatives.** 



iApp.,Noe. 1091-1103. 

*FoBtpar. 130. 

> App., KoB. lOM, 1096. 1097, 1099. 

* 25 yeas to 22 nays. 
»App.,Ko8. 1135-1140. 

• App., Nob. 1104, 1108, 1117, 1118, 1123, 1126, 1132, 1184. 

' App., Nob. 1135-1140. Aiiientlineuts prcHeutetl in the House Nos. 1141-1143. 

•App., Nos. 1148, 1152, 1156, 1159, 1172, 1173, 1175, 1177, 1178. 

•App., No. 1177. 

'«App., Nos. 1135-1140. 

» Proposed by Messrs. Dixon and Ashley, App., Nos. llMf, 1203, 1213c, 1219, 1227f, 1245. 

" App., No. 1315e, for speech Globe 40th Cong., 3d Sess., App., p. 21 1 . It provided that in 
election of Representatives, whenever more than one Kepre>8entativo was to be elected 
from a State, Congress shall "designate the manner in which such additional representa- 
tion shall be chosen, and shall provide for securing to the qualified electors in such States 
personal representation in Congress as near as may be." He advocated the "Hare sys< 
tern '* of proportional representation. See post, par. 45, for schemes for proportional rep- 
resentation of the minority in elections of President Mad Vice-President 



54 AMERICAN HISTORICAL ASSOCIATION. 

We have seen that almost tlie whole difficulty of apportion- 
ment of Kepresentatives arose out of the question of the 
status of the ne^ro. The trouble manifested itself first in 
the Constitutional Convention itself, next in the early years 
of this century, and although on only one occasion from that 
time to 18G0 were amendments introduced; still during all this 
period the additional power wielded by the white man in the 
South, owing to the i)artial representation given for the slaves, 
was one of the grievances of the North. The question was 
opened anew by the abolition of slavery, which had entirely 
changed the old relations. The second section of the fourteenth 
amendment was designed to meet this question, but it was only 
partial in its results, its provisions not affirming the right of 
the negro to vote. The fifteenth amendment completed the 
series of guaranties by forbidding in all cases the exclusion 
from the franchise of any person "on account of race, color, 
or previous condition of servitude." 

It is significant that, just as the perplexing question of rep- 
resentation in Congress was settled by constitutional amend- 
ment, a new phase of the subject was opened, one which is 
likely to assume more importance during the second century 
of our history under the Constitution.^ 

23. LIMITATION OF THE NUMBER OF REPRESENTATIVES. 

The early fear seems to have been of too small a House, as 
is shown by the action of five of the ratifying conventions in 
proposing an amendment fixing the apportionment at the ratio 
of 1 Representative to every 30,000 until the whole number of 
liepresentatives should amount to 200.* In the early years the 
increase in the number of Representatives did not keep pace 
with the growth of the population of the country. During 
the period 1790 to 1820, while the population rose from nearly 
4,000,000 to about 10,000,000, or an increase of nearly 150 per 
cent, the House of Representatives a little more than doubled 
in membership.^ By 1821 the evils of a numerous House of 



^St-e Bryce, Vol. I, p. 481; Hitchcock's Am. State Consts , pp. 33-34; Foster, Cotii. on 
the CoDHt.. Vol. I, pp. 343-344; Coninious, Prop. Reprenentatiun, Chaps, iv, v, VI, and x. for 
instances of the trial of minority representation in certain canes. In the Fifty-Hocond 
Congress Representative T. L. Johnson of Oliio introduced a bill for proportional repre- 
sentation. Mr. Bnckalew, also, in 1867-1871, a<lvocjitcd a scheme for a cumulative vote lor 
Itepresentatives for Congress. Commons. i)p.ll4-l]5, 247-248. 

* See ante par. 22, Part 1. 

* Census of 1790, 105 Reprosentalives, or 1 to 33,000; census of 1800, 141 Representa- 
tives, or 1 to 33,000: census of 1810. 181 Repreptentatives. or 1 to 35,000; census of 1820* 
212 KepreaenUtives, or 1 to 40,000. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 55 

llepresentatives appeared, and in that year Senator Barbour of 
Virginia introduced a resolution to amend the Constitution so 
as to limit the number of Eepresentatives to 200.' He said: 
'^ There is a recommendation in favor of the smallest number 
consistent with the great principle of representation growing 
out of our peculiar form of government. As you multiply the 
number of the House of Representatives you give to it more 
the form and eventually more of the character of a National in 
contradistinction to a Federal Government." The author of 
the resolution asserted only his desire to counteract any tend- 
ency which might lead to a centralized government.* After 
considerable discussion the resolution was postponed indefi- 
nitely. In 1842 Mr. Underwood of Kentucky offered an 
amendment to the effect that ^' in the apportionment of Rep- 
resentatives, which is made based upon the census taken in 
the year 1850, the number of Representatives shall not exceed 
double the number of Senators." The resolution was referred, 
and the committee reported adversely.' 

No other resolutions suggesting amendments upon this sub- 
ject were presented in Congress until the early "eighties," 
when there were four amendments introduced, two of these at 
the time the bill for the reapportionment of Representatives 
was under consideration. They all proposed a reduction in the 
membership of the House as at present constituted, although 
they all fixe<l upon a different number. One provided that the 
House of Representatives should be composed of 300 members.* 
The others placed 325,* 350,* and 351, respectively, as the max- 
imum number." Two of these were presented by Mr. Herbert 
of Alabama. None of these resolutions were reported from 
the Committee on the Judiciary, to which they had been 
referred. The latest change suggested was in 1888, when an 
amendment was proposed to limit the House to 250 members.'^ 

The desirability of reducing the size. of the House of Repre- 
sentatives can not be seriously questioned, for it is a well- 
known fact that the House has become such a large and 



< Api).,No. 504. 

* This woB the time of the begiDiiing uf Ibe "Crawford machine." 
» App.. No. 725. 

* App., No. 1507. 

« App., No. 1530; 1553. 

' App., No. 1585. 

' App., No. 1710, with the proviHO that in caae a new State waa admitted the repreaenta- 
iiou to which it shall be entitled Hhali be in addition to the limit fixed until the next sue- 
oeoding apportionment. 



56 AMERICAN HISTORICAL ASSOCIATION. 

unwieldy body that the greater part of the bumness has to be 
left to the committees. There is little prospect, however, of 
effecting this change cither by ordinary law or by amendment, 
for there is a constant tendency to increase the number of 
members more rapidly than the growth of the population 
would call for,^ The present House consists of 367 Bepresent- 
atives and 3 Territorial Delegates.* 

24. ELECTION OF REPRESENTATIYES. 

The Constitution provides that ^^ the time, places, and man- 
ner of holding elections for Senators and Kepresentatives shall 
be prescribed in each State by the legislature thereof; but the 
Congress may at any time, by law, make or alter such regula- 
tions, except as to the place of choosing Senators."' Congress 
has always desired to assimilate its system to that of the States, 
and this is almost the only case where the United States per- 
mits the States to perform its functions. Thirty -four resolu- 
tions have been introduced in Congress proposing some change 
in the provision quoted above in the case of election of Kepre- 
sentatives. These for the most part were introduced between 
the years 1800 and 1826. 

The variety of methods in use in the diiferent States, both 
for the choice of electors and liepresentatives, suggested the 
attempts made during the early years of this century to pro- 
vide a uniform system.* These resolutions commonly proposed 
amendments applying both to Presidential and Congressional 
elections. The first resolution of the kind was offered by Mr. 
Nicholas of Virginia, in the year 1800. It proposed a division 
of each State into districts, the people in each district to choose 
one Eepresentative in the manner in which the legislature 
shall provide.® In 1802 the legislatures of Vermont and North 
Carolina presented resolutions of a similar character.''' Again, 



> The araendmeDt sent out to the States by the First Confess would have enabled Con- 
gress to limit the House after the number had reached 200 ; see ante par. 22, Part 1. 

' By the last apportionment bill the House was to consist of 356 members, the admission 
of Utah as a State added one more Kepresentative. The present ratio is 1 to 173, 901 . 
For table of apportionments, se« Hinsdale's Am. Govt., pp. 158-150. 

* Constitution, art. 1, sec. 4, cl. 1. See ante, par. 0. 

<In the early elections the following methods were in use: First, by districts in Massa- 
chusetts, Virginia, New York, Maryland, South Carolina. Second, by general ticket in 
New Hampshire, Pennsylvania, Xew Jersey, Georgia. Third, in Connecticut a prelimi- 
nary election was held to nominate a list three times the number to be chosen, from which 
at a subsequent election the Representatives were selected. See also Story, I, p. 583. 

* App., Nos. 339, 341. Jefferson favored election by districts and not by general ticket. 
See lett«r of January 12, 1800, Works, Vol. iv, p. 808. 

•App., Nos. 843, 347, 349. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 57 

after a lall of a few years, the legislatore of !North Carolina 
renewed, in 1813, their resolution J From 1816 to 1826 there 
were twentytwo resolutions proposing the choice of Repre- 
sentatives by districts.^ During the years 1816, 1817, and 1818 
the legislatures of six of the States applied to Congress for an 
amendment of this nature.^ The earlier movement was cham- 
pioned by Mr. Pickens of North Carolina, the later by Senator 
Dickerson of New Jersey, who offered an amendment regularly 
almost every year from 1817 to 1826/ The Dickerson amend- 
ment passed the Senate three different times, namely, in 1819, 
1820, and 1822, but each time failed to be brought to a vote in 
the Honse.^ The desire for local representation gradually led 
to the general adoption by the States of the district system of 
electing tbeir Congressmen, and caused the introduction of 
amendments on this question to cease.^ 

For a long time Congress made no use of its undoubted 
power to regulate Federal elections.^ Owing, however, to the 
prolonged contest in the Twenty-sixth Congress, resulting 
from the disputed election in New Jersey in 1838, which State 
still adhered to the method of election by general ticket,^ the 
Whig majority enacted in 1842 a law making the election of 
members of the House of llepresentatives by districts manda- 
tory on all the States. The law was opposed by the Demo- 
cratic party, and some of the States for a time refused to 
comply with its terms, but after a few elections it was sub- 
mitted to everywhere. Consequently, only once since has it 
been proposed to amend the Constitution in this particular, 
and this was in connection with a proposition to choose the 
Presidential electors by districts.^ During the reconstruction 
period it was proposed to so amend the Constitution that it 
should be the duty of Congress, at the first session after each 



I App., No8. 40«, 408. 

* App., No8. 449, 452, 452a, 454, 459, 462, 468,471, 481, 488, 486, 487, 490, 498, 499, 502, 506, 518, 525, 
528, 533, 576. 

' MasAachasetts, in 1816; New Jersey and North Carolina, in 1817; New York, North 
Carolina, New Hampshire, New Jersey, and Conneoticut, in 1818. 

* Bight in all. App., Nos. 468, 486, 498, 499, 505. 518, 528, 576. 

^ App., Noa. 486, 596, 505. See choice of Presidential electors by districts, post, par. 39. 

^ At the same time the general«ticket system was adopted for Presidential election. See 
post, par. 40. In 1828, in the election for the Twenty-sixth Conjiress, only New Hamp- 
shire, New Jersey, and Oeorgia adhered to the old method of election by general ticket. 

7 Story, I, pp. 582, 583. 

■See post, par. 25; Yon Hoist, ii, pp. 336-340. 

•App., Nos. 1247, 1248. 



58 AMERICAN HrRTOKIPAI. ASSOCIATION. 

decennial census, to divide the several States into Congres- 
sioual districts eqaaling in number the Representatives in 
Congress J The puri)08e was to prevent " gerrymandering/' 
but it is probable that this change would simply have caused 
bad districting on a grander scale. 

Although Congress has refused to recommend any of these 
proposed amendments to the States for ratification, it has from 
time to time enacted additional laws extending its control over 
Federal elections.^ In 1871 Congress passed a law requiring 
that all votes for Representatives must be by written or printed 
ballots,^ and further made provision for the appointment of 
supervisors, who should supervise the registration and casting 
of the ballots for the election of members of the House of Bep- 
resentatives.* Again, in 1872, it exercised its authority by 
appointing a uniform day for the election of members of the 
House.^ Since this last date in its apportionment bills Con- 
gress has prescribed that the districts shall contain as nearly 
as possible an equal number of inhabitants. These laws mark 
the extent to which Congress has gone in regulating the elec- 
tion of its members. The recent attempt made in the Fifty- 
first Congress to pass the " Federal election bill," which would 
liave extended Federal supervision even further, is familiar to 
all.^ Although there can be no doubt of the right of Congress 
to assume control over Federal elections,'' there seems to be 
some hesitancy on the part of Congress to exercise this right. 
This undoubtedly contributed much to the defeat of the above- 
mentioned "Federal election bill," and led the Democratic 
ms^ority in the Fifty -third Congress to repeal the statute of 
1871 relating to the supervision of elections.^ 



» App., No. 1310. 

'In 1806 it passed a law to regnlat« the procetltire of State lef^islatnres in electing 
Senators, U Stat. L., p. 213, v. 245, s. 1. 

»Febraary 28, 1871, 19 Stat. L , p. 440, c. 99, s. 19. 

^To he appointed by the Federal coarts in any election district upon the petition of a 
spe<*ifl(«d nnmlier of citizens. Ibid., p. 348, ch. 415. 

* February 2, 1872, 17 Stat. L., p. 28, ch. xi. The law was modified to legalise elections in 
certain States on other days. All except Mainv , Vermont, and Oregon elect st the stateil 
time. An amendment, App. No. 1355, was proposed in 1872 authorizing Congress to tix 
a uniform day for State elections. 

* During the debate the opponents of this measure threatened that if it became a law 
several of the States would return to the old Hy.^tem of electing their Representatives bj* 
general ticket in defiance of the laws uf Congress. 

»Ex parto Siebold, 100 I". S., 371; Ex parte Clarke, ibid., 299; U. S. c. Gale, 109 U. S., 
65; Ex parte Yarborough. 110 U. S., 651. 
•Feb. 8, 1894, 28 Stat. L., p. 36. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 59 
25. PROVING ELECTIONS TO THB HOUSE OF KEPRESENTATIVES. 

During the turmoil and discussion in the Twenty-sixth Con- 
gress, connected with the settlement of the contested election 
of five Representatives from New Jersey — which led to a con- 
test lasting several months, as the election and the control of 
the House depended upon the issue of the controversy — a reso- 
lution was introduced authorizing the Committee on the Judi- 
ciary to inquire into the expediency of amending the Con- 
stitution ^ so that the same shall define and prescribe the evi- 
dence ux)on which persons claiming to be members of the House 
of Representatives shall take their seats in the House and be 
entitled to exercise the privileges of members, until an inves- 
tigation and decision by the House.^ 

Although the subject of determining the results of contested 
elections has continued to agitate the country at times ever 
since, there has been no further suggestion of an amendment 
10 the Constitution. Party exigency has usually proved more 
powerful than considerations of right and justice, but no 8ug> 
gestion of adopting the English practice of a judicial decision 
has been made. The power of Congress^ as the Constitution 
now stands, is incontestable.^ 

26. TERM OF REPRESENTATIVES. 

At the time of the formation of the Constitution in all of the 
States but South Carolina the members of the lower branch of 
the legislature were chosen annually.^ Many of the members 
of the Philadelphia Convention favored annual elections inas- 
much as a longer term might make the Representatives inde- 
pendent of their constituents.^ Others, including Madison 
and Hamilton, desired a term of three years or even longer, on 
the ground that in a short term new members could not be- 
come accustomed to their duties, and that too frequent elec- 
tions tended to make the people indifferent to the election." 
The two-years term was finally agreed upon as a compromise.'^ 



' Const., art. 1, sec. 5, ol. 1. 

*App., No. 703. This contest lasted Arom December, 1839, until March 10, 1840, when 
the Democratic contestant was seated. See ante, par. 24, for rererences; also Benton ii, 
p. 159. Story, I, p. 585, note 1. 

« In re Lonly, 134 U. S., 372. 

^ Story, 1, p. 430. Robinson, Annals of Acad, of Pol. Science, I, p. 214. 

'Gerry considered f^«quent elections the only defense of the people against tyranny. 
Elliot's Debates, toI. y, p. 184. 

* Mr. Jenifer's speech . Elliot, V, p. 183. 

' Triennial elections were first adopted by vote of 7 to 4, later strnck out and two years 
stibetitnted by vote of 7 to 3, one State divided ; finally agreed to by unanimoua consent. 
21Uot,T, pp.184,226. 



60 AMERICAN HISTORICAL ASSOCIATION. 

There has been no general dissatisfaction with this term, 
and hence few amendments proposing a change have been pre- 
sented. In the First Congress a resolntion restricting the 
number of years in succession the same person could serve 
was presented.^ It stipulated that no person should be capa- 
ble of serving more than six years in any term of eight years,^ 
Mr. Hillhouse, in 1808, offered, as the first article of his inter- 
esting series of radical amendments, a proposition that the 
term of Eepresentatives should, after March 3, 1813, be but 
one year.^ 

No similar propositions appear until 1869, but since that date 
eleven resolutions, all to lengthen the term of service, have 
been introduced by members of the House. Eight of these 
proposed fixing the term at three years/ One of this group 
provided for the division into classes, so that one-third might 
be chosen every year.^ Of the remaining three, two would 
have increased the term to four years, while one proposed to 
make the term of Eepresentatives equal to that of Senators, 
with a similar division into classes.^ 

The lengthening of the term to three years, as well as the 
proposed division into classes, has much to commend it. There 
is little doubt tliat a longer term of service would greatly 
increase the capacity of the members for legislation. At pres- 
ent anew member is at a serious disadvantage.^ A three- years 
term would not only afford a Representative a better oppor- 
tunity to prove his worth, but give his constituency a better 
chance to judge of his competency. 

27. THE SENATE : ELECTION OP SENATORS. 

The Senate has changed less in the first one hundred years 
of its existence than its associated body, the House of Eep- 
resentatives. Although there are at present forty- five States 
in the Union, the Senate is still a comi)aratively small body. 
Inasmuch as it has been for the most part a dignified and con- 



1 Based on rotation rule of the old Congress of tho Confe<leration. Art. of Cunfecl., 
art. V. 
«App., No.194. 

* App., No. 390. For other articles of serieH, ace post, pars. 30, 34, 47, 57, 69, 60. 

«App. Noft. 1425, 1440. 1499, 1534a, 1571. 1625, 104 1, 1735a. Five of these by Mr. Springer of 
Illinois. 

* App. No. 1425. 

•App. Nos. 1313, 1360, 1548. 

' By the present arranguiuent of sessions the election comes after the first session. This 
places both the Representative and his constituency at a disadvantage. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 61 

servati ve body, it has been the subject of less controversy than 
the Hoase, which is more directly responsible to the people, 
and hence of a smaller variety of amendments. 

The proposition most frequently presented has been that in 
regard to the choice of Senators by popular vote in each State.^ 
Previous to 1872 there had been nine resolutions of this char- 
acter, but since that date up to the close of the Fiftieth 
Congress this change has been urged some thirty times. This 
amendment was first proposed in Congress by Mr. Storrs of 
New York, in 1826.2 jj^ j^g,^ ^ similar resolution was intro- 
duced.^ During the early "fifties'' five propositions were 
brought to the attention of Congress.^ Andrew Johnson, in 
1860, when a Senator, and again in 1868 as President, advo- 
cated the same amendment which he had twice before in the 
"fifties" introduced when a member of the lower House.' 
The marked increase since 1872 in the number of resolutions 
proposing this change shows that it has a strong hold on 
popular feeling. Scarcely a session of Congress passes in 
which one or more resolutions are not ofi'ered to secure this 
amendment.^ In the Forty-ninth and Fiftieth Congresses, 
respectively, there were six such resolutions proposed.'' An 
examination of the journals of Congress for the years subse- 
quent to March 4, 1889, which lie beyond the period of special 
investigation of this monograph, shows that the number of 
resolutions proposing this change is unprecedented. In the 
first session of the Fifty-second Congress alone twenty-five 
resolutions on this subject were presented,* The legislatures 
of at least fifteen States have, within recent years, recom- 
mended this amendment.^ Congress has been so far influ- 
enced by the popular demand for this change that the House 



1 WilBon of Pennsylvania, in the Conventiou of 1787, made a motion to give the election 
of Senators to the people. Pennsylvania alone voted for it. The preHent Hysteni was 
agreed to by nine States to two. Pennsylvania and Virginia voting against it. Jour. 
Fed. Con., pp. 106, 147. Story, I, p. 504. 

* App., No. 558. Tabled. 
*App., 1^0.644. 

* App., Nos. 766, 766, 769, 772, 775. 
•App., Nos. 814,1231. 

« App., Nos. 1313, 1349, 1359a, 1366, 1370, 1375e. 1380, 1381, 1382, 1385, 1409, 1421, 1448, 1457, 
1518, 1620, 1543, 1563, 1602, 1615, 1617. 

7 App., Nos. 1643, 1647, 1674, 1683, 1684, 1687, 1695, 1698, 1704, 1719, 1721, 1730. The preamble 
of No. 1643 gives as the reason for the change that "the Senate is now attempting to 
interfere with the power of the President to remove officials." See post, par. 60, note. 

* S. R. 6, 8, 37, 99. H. Res. 2, 3, 6, 7, 13, 16, 18, 19, 20, 21, 30, 81, 34, 35, 37. 30. 47, 79, 83, 84, 90. 

* California, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Minnesota, 
New York, Ohio, Oregon, Washington, Wisconain, Wyoming. 



62 AMERICAN HISTORICAL ASSOCIATION. 

of Representatives of both the Fifty-second and the Fifty- 
third Congresses have passed, by very pronounced minorities, 
a joint resolation to submit such an amendment to the States.^ 
The Senate, however, has failed to advance either of these 
resolutions to a vote.^ 

Some of these proposed amendments provide for the choice 
by the people, if a State prefer it, but the great majority 
take away all option and make the election by the people im- 
perative. Some propose to confer upon Congress the power to 
provide by law for the conduct of the election and the can- 
vassing of the vote.^ A tendency in the opposite direction, 
however, is seen in both the amendments recently proposed by 
the House of Representatives. Each contains a provision that 
^<the time, place, and manner of holding elections for Senators 
shall be prescribed in each State by the legislature thereof." 

Two of the recent propositions proposed to do away with 
the present basis of representation and substitute a system of 
proportional representation in its place.^ The first of these 
provided that each State should have at least two Senators, 
but that for each million of inhabitants of any State in excess 
of two million, an additional Senator should be allowed such 
State. By the terms of the second each State would have one 
Senator, and an additional one for every million of x>opulation. 
There is little reason to suppose that the great compromise of 
the Constitution will be disturbed, for no State can be deprived 
of its equal representation in the Seuate without its own con- 
sent, and it is not in the nature of things to expect that any 
one of the eighteen Commonwealths whose Senatorial strength 
would be reduced one half by the second proposition would 
consent to it.* 

The principal reasons which have been urged in favor of the 
election of Senators directly by the people are as follows: 
First, that the method now in use is not in accord with our 

> Fifty-Hecond Congrean, second KesKion. Coog. Record, pp. 617-618. PasHed without 
dhiHion. Fifty-third CongrMS, Heoond seHHion, IT. J., pp. »98, 497, 499, 501. Vote 141 to 51. 

* In the Fifty-third CongresH, third soAsion, re i>orted adveraely . S. Rep., 916 ; CoDg. Reoonl, 
p. 2152. In the Fifly-fonrth CongrcHs, firiit HCHMioii, March 23, 1896, such an amendment 
waa reported favorably, with an interesting report. S. Rep., 530; Cong. Record, pp. 3333, 
3412-3415. 

* Ah App., Nos. KW5, 1409. 

* Bayne of Pennsylvania; App., No. 1543; Miller of WiHconsin; Fifty-second Congress, 
First HeMsion, Cong. Ri^cord, p. 201, January 17, 1892. The "liandolph plan, " presented 
to the convention of 1787, made provision for proportional representation in both Hounes. 

*The following States would by this plan be reduced to one Senator; Colorado, Con- 
ue<;tiout, Delaware, Florida, Idaho, Maine, Montana, Nevada, New ilampshirc, Nortii 
Dakota, Oregon, Rhode Island, South Dakota, Utah,yermont,Wa9hington, West Virginia, 
and Wyoming— 18. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 63 

democratic system, aud iodicates a lack of confidence in the 
wisdom of the people: second, that the present method leads 
to the corruption of legislatures, aud to the selection of men 
whose only claim to office is their great wealth or their sub- 
serviency to corporate interests. On the other hand, it is main- 
tained that the proposed change would lead to the choice of 
deserving men, reflecting more truly the sentiment of the 
people. Again, it is urged that the proposed method would 
prevent the i)rolonged deadlocks which sometimes occur in 
the State legislatures in their effort to elect a Senator.^ Fur- 
ther, it would take away one incentive for legislative gerry- 
mandering of States. Finally, the advocates of popular elec- 
tions claim that the evils of the present method, which tend to 
the introduction of national affairs into State politics and lesid 
to the election of members of the State legislatures on national 
instead of local issues, would be diminished.^ Still, it maybe 
said in supx)ort of the present method that it has secured to 
the United States the only effective second chamber in the 
world. ^ 

28. FILLING VACANCIES IN THE SENATE. 

Only one of the ratifying conventions objected to that pro- 
vision of the Constitution which gives the executive of the 
State power to make temporary appointments to vacancies in 
the Senate.* The New York convention included in the series 
of amendments which it proposed one to reserve this i)Ower to 
the legislature.* This would involve either a special session of 
the legislature in case of a vacancy or a continuance of the 
vacancy until the next regular session. The resolutions pro- 
posing the election of Senators by the popular vote usually 
made provision for this contingency. In general, the executive 
of the State was to issue writs for a special election,^ although 

> Recent examples : Illinois (1890); Mont»na, Washington, and Maryland (1893); Dela- 
ware (1894-95); Kentnoky (1895-96). (1897.) 

* References: In favor of the proposed change, John Haynes, Popular Election of 
ITnited States Senators. Johns Hopkins University Studies, series xi, p. 547. S. Report 
530, Fiffy-fourth Congress, First session; Cong. Record, pp. 3412-3415. In opposition: 
Ex-Senator Edmunds, "Forum, '* Vol. xviii, p. 270. Senator Hoar's speech of April and 7, 
1893 ; Cong. Record, pp. 101-110. Pro and Con, Publications of the Mich. Pol. Science Ash., 
voL 1. 

> "The election of Senators has in substance almost ceased to be indirect." See Bryce, 
I, pp. 100-101, note 1. Kote proviHion in the constitution of Nebraska of 1875, -which 
allows voters ** to express by ballot their preference for some person for the ofliceofUnilL-U 
States Senator." 

* (yonst., art. 1, sec. 3, cl. 2. 

* App., Xo. 63. 

•Am App., Nos. 1366, 1543. 



64 AMERICAN HISTORICAL ASSOCIATION. 

one provided that the vacancy should be filled at the next 
general election in the State, bat that pending the election the 
executive might make temporary appointment.^ 

There is no need of an amendment. The period during which 
the office is vacant is short, and the legislature frequently 
chooses some other man than the one appointed by the gov- 
ernor and is not often influenced by the personal desires of 
the temxK>rary incumbent for a reelection. 

29. RECALL OF SENATORS BY STATES. 

Among the amendments proposed by the ratifying conven- 
tions there was one which was advocated by two of the North- 
ern States — ^New York and Ehode Island — ^providing that the 
legislatures of the respective States may recall their Senators 
and send others in their place.^ The general doctrine of 
instructions received little adherence during the early years 
of Congress.^ No resolution was brought before that body 
until 1803, when the legislature of Virginia proposed an 
amendment authorizing a State to recall its Senators.'* Two 
years later, upon the acquittal of Judge Chase, ^Nicholson of 
Virginia, who bad been associated with John Eandolph in pre-, 
senting the case for the House, and who was smarting under 
the sting of defeat caused by the failure of some of the 
Kepublican Senators to vote for the conviction of a judge 
impeached by their own party associates, sought revenge by 
trying to secure an amendment which would render Senators 
liable to recall by their State legislature.' Three years later 
the legislature of Virginia renewed its former resolution, 
which was presented to Congress by her Senators and Eepre- 
seutatives. This amendment provided that Senators might be 
removed by a majority vote of the whole number of members 
of their respective State legislatures.^ It called out in reply 
resolutions of disapproval from the legislatures of Maryland, 

»App.,No.l687. 

«App.,Not.ei,121. 

•Although the States early passed resolutions instructing their Senators (and rcqueHt- 
jng their Representatives) to favor or oppose measures. In the session of 1799-1800 the 
leginlature of Virginia instructed the Senators to oppose naval exi)enses. Benton, ii, 
p. 572. Griswold of New York, in 18U3, made a spcKJch against the doctrine of instruc- 
tions of Kepreeentatives by State legislatures. Annals, Eighth Congress, First session, 
p. 064. 

« App., No. 362a. Massachusetts legislature passed resolutions of disapproval. See Ibid. 

*App., No. 367. Randolph presented an amendment for the reoMval of judges. Post, 
par. 71. Schouler, ii, p. 78 ; HcMaster, iil, p. 182. 

*App., Nos.386, 388. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 65 

New Jersey, Tennessee, Georgia, Massachusetts, and Vermont.* 
This amendment, if passed, would have made the Senators 
directly responsible to the State legislatures. At first it would 
probably have resulted in the removal of such Senators as 
went counter to the supposed interests of their State, and it 
might have gone on until it would have led to the removal 
of all Senators who were not in harmony with the dominant 
party in the State legislature.* 

It will be remembered that John Tyler, inasmuch as he 
believed in the right of instruction, resigned his seat in the 
Senate in 1836 rather than follow the instructions of the legis- 
lature of Virginia to vote for the "expunging resolution.'" 
Likewise Senator White of Tennessee resigned his seat dur- 
ing the session of 1839-40 because the legislature of his State 
passed resolutions censuring him for having voted on certain 
measures with the Whigs and calling on him in the future to 
act with the Democratic party.* 

It is worthy of note, in connection with the doctrine of instruc- 
tion, that it is customary for the States in passing a resolution 
in favor of some amendment to prefix a preamble instructing 
their Senators and requesting their Eepresentatives to urge 
its adoption, thus seemingly impl3ring that the legislatures 
have the right to instruct Senators, but that the Bepre- 
sentatives are responsible only to their constituents. 

30. TERM OF SENATORS. 

The term of Senators is abnormally long. With the excep- 
tion of some judgships, it is the longest term of any of the 
elective offices in the XTnited States.* It is not surprising, 

1 AdhaIb of Congress, Tenth Congress, second session, p. 306. Ibid., Eleventh Congress, 
third session, p. 383. Ibid., Twelfth Congress, first session, p. 569. Archives of Mas- 
sachusetts Jiegislatare. Doc. 6845 ; Resolves of Massachusetts Legislature, Vol. xn, p. 365 ; 
Archives of Massachusetts, Misc. Doc., 6663. 

* Richard Brent, in 1811. was censured by the legislature of Virginia for voting for the 
recharter of the bank contrary to its instructions. A bill setting forth Its rights appears 
in the Laws of Virginia. See McMaster, in, p. 390. 

*For letter of John Tyler, see Niles' Register, Vol. L, pp. 17, 25-27. Senator Leigh's 
letter refusing to resign, ibid., pp. 28-32. Resolutions of the legislature of Virginia 
asserting the right of instruction, S. J., p. 233 (Twenty-fourth Congress, -first session). 
Mr. Rives of Virginia had resigned his seat in the previous year because he differed from 
the legislature on the deposit question, Niles' Register, Vol. l, p. 17. See also Niles' 
Register, Vol. xlvii. pp. 129, 161, 178, 813, 401-402, 445 ; Vol. L, p. 11. 

* Benton, Thirty Years' View, ii, p. 184. Webster expressed himself on several occa- 
sions against the binding force of instructions. Works, in, pp. 228, 356; v, p. 425 
Foster, Commentaries on the Constitution, i, pp. 404-496, and notes for other instances. 

*In the Federal Congress it was first fixed at seven years, then reconsidered and aftvr 
a five and a nine year term had been rejected the six-year term was adopted. £Uiot, v. 
pp. 203, 241 , 245 S tory , I, p. 508 

H. Doc 353, pt 2 5. 



66 AMERICAN HISTORICAL ASSOCIATION. 

therefore, that eight propositioDS have been presented to change 
the term of Senators, all within the first fifty years of the 
history of the Constitution. These all proposed diminishing 
the length of the term, some to one, others to three, and still 
others to four years. 

Before discussing the separate amendments of this class, 
one amendment must be referred to, which was proposed 
by the ratifying convention of New York. It provided that 
no person should be eligible as a Senator for more than 
six years in any term of twelve years.^ This would prevent 
a Senator succeeding himself. The advantage of the proposi- 
tion was not evident, and it received no consideration in the 
First Congress. 

One proposition was, however, presented in the First Con- 
gress affecting the term of Senators; this was the only resolu- 
tion that has been offered proposing to reduce the term to one 
year. It further stipulated that no person should be capable 
of serving more than five years in any term of six years. The 
motion of reference was lost.^ Three resolutions have been 
proposed fixing the term at three years. This suggestion first 
came from the legislature of Virginia in 1795.' Their propo- 
sition made provision for the division of the Senators into 
three classes, one-third to retire annually. The same amend- 
ment was next proposed by Senator Hillhouse, in 1808, as a 
necessary part of his plan for the choice of the President by 
lot each year from the retiring Senators.* This change was 
last presented in 1816, by Senator Bibb of Georgia, and after 
an extended discussion was rejected by an overwhelming 
majority of the Senate.* 

Amendments were proposed in 1812, 1814, 1829, and 1839 
reducing the term of Senators to four years,^ The first two of 
these were resolutions from the legislature of Tennessee.'' The 
last was one of a series of propositions introduced by Mr. Talia- 



» App., No. 61. Similar reatrictiona proposed for Representatives in First CoDi^ress. 
Ante, par. 26. Another evidence of the fear of the creation of a ruling class and a desire 
for rotation in office. 

»App, No. 391. 

« App., No. 327c. 

* App., No. 391, see post, par. 47. 

•App., No. 451. 

6 App., No8. 405a, 419, 594, 689. 

' It would seem that Georgia had also proposed the same, for in 1816 the legislature of 
Louisiana, North Carolina, and Ohio passed resolutions disagreeing with an amendment 
proposed by Georgia. Annals of Congress, Fourteenth Congress, first session, p. 36(r 
Archives of Massachusetts, Misc., 81U5, 8183. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 67 

ferro of Virginia. It made provision for the division of the 
Senators into two classes, so that one class should be elected 
biennially. !N^one of these resolutions were reported from the 
committees to which they had been referred, 

31. TRIAL OF IMPEACHMENTS OF SENATORS. 

The ratif;fing conventions in Virginia and North Carolina 
proposed as an amendment to the Constitution " that some tri- 
bunal other than the Senate be i)rovided for trying impeach- 
ments of Senators."^ The same amendment was rejected by 
the Senate when presented in the First Congress.^ Only one 
attempt has been made to impeach a Senator. This was in 
the case of William Blount of Tennessee, in 1798. Previous 
to the trial he had been expelled from the Senate for violation 
of the neutrality laws of the United States. He was acquitted 
by the Senate for lack of jurisdiction.^ 

In 1795 the legislature of Virginia passed a resolution recom- 
mending ^Hhat a tribunal other than the Senate be instituted 
for the trial of impeachments."* With the exception of the 
propositions referred to in connection with the impeachment 
of judges,* which were also presented during the early years of 
the life of the Constitution, no other emendation of this clause 
has been sought. 

32. PRESENT STATUS OF AMENDMENrS RELATING TO THE 

LEGISLATIVE DEPARTMENT. 

In the foregoing consideration of the various attempts to 
change in any particular the form of the legislative depart- 
ment, we have seen, with the exception of the amendments 
relating to the apportionment of Eepresentatives and the popu- 
lar election of Senators, that by far the greater number of 
propositions were introduced in the earlier years of the century. 
In recent years, with the exception of the above-mentioned 
classes, amendments of this character have been comparatively 
few. On the other hand, it is a noteworthy fact that there 

1 App., Nob. 44, 97, see post, par. 71. 

* App., No. 286. 

* Blount's counsel held that the Senate had no jarisdiction over him, first, because as a 
Senator he was not a civil officer liable to impeachmeut, and, second, that since his expiil« 
sion he was no longer a Senator. The Senate sustained the first plea. Stor^, i, pp. 559- 
561,567.568, note 4; Foster, l, pp. 529-531 , 

* App., No. 827b. 
*?Mt»par.7l. 



68 AMKRICAN HI8TORICAL ASSOCIATION. 

in a i^rowin^ desire to i)lace some restrictiou apon the exercise 
of certain jiowers by Congress.* 

Among the ami^ndinents )>resented during the closing years 
of the first century of our history under the Constitution the 
following are the most imi>ortant: The pro|K>sition to change 
the time for opening and closing the sessions of Congress; the 
iittempt to increase the term of Itepresentatives to three years; 
the effort to fix a limit upon the number of I{ei>resentatives, 
and the growing movement to confer the election of Senators 
uiH>n the peo[)le. 

All of these amendments are evidently intended to reform 
(congress and make it a more etticient body. All of these pro- 
posed changes, it would seem, are worthy of being adopted, 
with the possible exception of the election of Senators by jwpu- 
lar vote, the advantage of which may be questioned. 



' Soo poHt, para. 147, 149. 



Chapter III. 

PROPOSED AMENDMENTS AFFECTING THE FORM OF THE 

GOVERNMENT: EXECUTIVE. 

33. EXECUTIVE DEPARTMENT. 

More amendments have been proposed to change the provi- 
sions of the Constitution in regard to the executive department 
than upon any other subject, there being some five hundred 
amendments that can be classified under this head. Of these, 
by far the greater portion were relative to the choice and term 
of the Executive, Of the eighteen amendments that passed 
one branch of Congress during the one hundred years since 
the inauguration of the Government, one-half have contained 
provisions either affecting the method of electing the Presi- 
dent or in regard to the duration of the term, and two have 
been presented to change the date of Inauguration Day.^ 

34. PLURAL EXECUTIVE : ABOLITION OF THE PRESIDENCY OR 

VICE-PRESIDENCY. 

Two propositions presented at the same time in the trying 
days just previous to the civil war suggested very radical 
changes in the Executive office. The first was a resolution 
introduced by Mr. Jenkins of Virginia, calling for the appoint- 
ment of a committee to inquire as to what changes are neces- 
sary in the form of the government for the self-preservation of 
the slave States, and suggesting the following for consideration : 
A dual Executive,^ the division of the Senate into two bodies, 
or making a majority of the Senate from the two sections nec- 
essary for all action, or the creation of another advisory body, 



> House 1, 1802, May 1, election of PreHident and Vicc-PreBident, App., No. 345; House 2, 
1803, October 28, election of President and Vice-President, App., No. 359; Senate 3, 1813, 
February 17, election of President and Vice-President, App., No.4t>9; Senate 4, 1819, Feb- 
ruary 3, tUection of President and Vice-President, App., No. 485; Senate 5, 1820, January 
27, election of President and Vice-President, App., No. 489; Senate 6, 1822, March 11, elec- 
tion of President and Vice-President, App., No. 506; Senate 7, 1824, January 30, President 
ineligible to third term, App., No. 535 ; Senate 8, 1826, April 3, President ineligible to third 
term, App., No. 545; Senate 9, 1869, February 9, election of President and Vice-President, 
App., No. 1308 ; Senate 10, 1886, Jane 18, date for Inauguration Day, App., No. 1676 ; Senate 
11, 1887, December 13, date for Inauguration Day, App., No. 1691 ; the twelfth amendment 
declared part of Constitution, September 25, 1804, App., No. 358. 

' Under certain circum-stances the McDuiho proposition would have resulted in two 
Executives. Post par., 50, 3. 

69 



70 AMERICAN HISTORICAL ASSOCIATION. 

a council.' The other, presented by Mr. Noell of Missonri, 
was a resolution authorizing the select committee to take into 
consideration the propriety of abolishing the Presidency, by 
amendment to the Constitution, and in its place to establish an 
executive council of three, the members to be elected by dis- 
tricts composed of contiguous States, and for each member to 
be armed with the veto power.' Once since has a similar 
proiK)sition been made. This was in 1878, when Mr. Southard 
of Ohio introduced a resolution proposing an amendment mak- 
ing full provision for the creation of an executive council of 
three Presidents, for their election and administration of the 
executive power.^ The members were to be selected respec- 
tively from each of the three "prominent sections'' of the 
country, " known one as the Western States, one as the East- 
ern and Middle States, and the other as the Southern States." 
The term of oHice should be six years, but it should be so 
arranged that one member should retire every two years. A 
majority vote should decide all questions in regard to the 
administration of the office. The preamble of the resolution 
declared as the chief reason for the proposed change that "the 
people of this country are opposed to monarchy or the ^one 
man power,' created by the accumulation of regal power in the 
hands of one person in the control and direction of their pub- 
lic affairs in their present extended and complicated relations 
and interests." * 

The Vice-Presidency, especially since the passage of the 
twelfth amendment, has proved to be a comparatively unim- 
X)ortant office, and less essential to the successful working of 
our system of government than a single Executive. It is not 
surprising, therefore, that there have been seven attempts to 
abolish the office. The first of these w^as made by the Federal- 
ists at the time of their opposition to the adoption of the twelfth 



» App., No. 795. The New Jersey plan presontod in the Convention of 1787, favored a 
plural Executive chosen and removable by Conjfresfl. The deHirabilit j' of u privy council 
appointed by Con(^re88 was alHO urge<l. Elliot, v, 192. See alMo Mason's proposition, 
ibid., 522. Dual Executive advocated by Calhoun as essential to the protection of his 
section of the country. Works, i, 393-396. 

* App., No. 804. Possibly sufcgestecl by the Swiss Federal Council, first CHtablished in 
the constitution of 1848, and retained in the revision of 1874. Hart's Fed. Govt., pp. 
65-66. This was reviving a proposition of Williamson's in the Federal Convention for a 
triple Executive to be chosen from the North, Middle, and South. Elliot, V, 358-359. 

> To be elected directly by the qualified voters of all the States, but the ratio of the 
vote of each State was to remain the same as under the existing system. App., No. 1466. 

* Other sections of the x)roposed amendment provided that no ]M>rson should be eligible 
for a second term : for the keeping of a journal of the proceedings of the council, a copy 
of which should be sent to Congress at the beginning of every regular session; for their 
<^om]>ensation, etc. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 71 

ameDdment. Mr. Dana of Connecticut moved to strike out all 
that portion of the amendment relating to the Vice-Presidency, 
the object being, as he frankly said, to abolish the office of Vice- 
Presden t.* The Federalists claimed that if the proposed amend- 
ment was adopted it woald render the continuance of the office 
of Vice-President useless, and that true reform required its 
abolition. The efl'ect of the proposed change upon this office 
was foreseen by several, but by none more clearly than Eoger 
Griswold. He warned Congress that ^'the man voted for as 
Vice-President will be selected without any decisive view to 
his qualification to administer the Government, The office 
will generally be carried into the market to be exchanged for 
the votes of some large States for President, and the only crite- 
rion which will be regarded as a qualification for the office of 
Vice-President will be the temporary influence of the candi- 
date over the election of his State.'" Too often subsequent 
events have justified Griswold's forebodings. Although his 
views were shared by Bandolph and some other Democrats, 
the dilatory tactics of the Federalists had aroused the Demo- 
crats so that they would brook no delay , and the prox>ositiou 
was rejected by a vote of 27 to 85. 

This proposition was presented for the second time by Sena- 
tor Hillhouse, also a New England Federalist, in 1808, in con- 
nection with his other amendments, changing to a considerable 
degree the legislative and executive departments.^ The re- 
maining five were suggested by Andrew Johnson's career. 
The first of these was introduced by Senator Poland of Ver- 
mont, in 1867, and the others in the years immediately follow- 
ing by Messrs. Ashley and Sumner, who maintained that the 
Vice Presidency was not only a "superfluous," but also a dan- 
gerous office.* 



' App., No. 358, Annals of Congreas, Eighth Congress, fir»t session, pp. 671-682. Dana 
had questioned the need of a Vice-President, in 1802, at the time the change which was 
later made by twelfth amondment, was lirst suggested. Annals Seventh Congress, first 
session, p. 1290. 

* Annals, Eighth Congress, first session, p. 751. Goavemeur Morris, Senator from New 
York, wrote a letter to the legislature explaining his vote against the amondment. In it 
he says: ''The Vice-Presidency would hereafter be but a bait to catch State gudgeons." 
Life of Gouvemeur Morris by Jared Sparks, Vol. ill. p. 173. Among the propositions 
suggested by Pickering for the consideration of the Hartford convention was one "to 
restore the original mode of cle<'-ting the President and Vice-President to prevent the 
election of a fool for the Iatt«r." Adams, New Eug. Fed., p. 408. See also Niles' Keg- 
ister, Vol. x.xiv, p. 411. 

* App., No. 394. Ante, par. 26, 30 ; post par. 47, 56, 59, 60. 

* App., Nort. 1205, 1227a. 1283a. 1352, 1369. In 1875 Garfield dwlared liiuinelf iu favor of 
the abolition of this oflice. Record, p. 757. 



72 AMERICAN HISTORICAL ASSOCIATION. 

35. FILLING OF VACANCIES IN THE OFFICE OF PRESIDENT OR 
VICE-PRESIDENT: ADDITION OF VICE-PRESIDENTS. 

In recent years atteution has been called to the fact that 
during the first century of our history under the Constitutiou, 
in addition to the death of four Presidents in office, there has 
been "over one- fourth of the time when the country has had 
no Vice-President/' and "in the last forty years of the period 
this office has been vacant nearly one-half of the time.^* It is 
not strange, therefore, in view of the frequent vacancies in the 
office of Vice-President, and the dissatisfaction with the old 
law in regard to the Presidential succession, that several 
attempts have been made to provide for this contingency by 
an amendment to the Constitution. These have been of two 
kinds, the one providing for the immediate filling of the vacancy 
by a new election, the other by the creation of additional Vice- 
Presidents. 

What appears to be the earliest proposition of the first class 
was suggested by Senator Davis of Kentucky, in 1864, in an 
amendment in regard to the election of President and Vice- 
President, which provided that any vacancy in the office should 
be filled by the Senate from their own number.^ By the terms 
of the amendments offered by Messrs. Ashley and Sumner on 
the same subject, vacancies were to be filled by a joint conven- 
tion of both Houses of Congress, in which each member was 
to have one vote.^ The same suggestion was renewed by Mr. 
Cravens at a later period.* Other propositions have provided 
that the colleges of electors should continue in office for the 
Presidential term, with power, in case of vacancies in both of 
the executive offices, to reconvene and elect a person to fill 
the same for the residue of the term.* 

The amendments of the second class provided for the elec- 
tion of additional Vice-Presidents. Five such propositions 
have been introduced, the first by Mr. Hammond of Georgia, 



^ Iloase Koport No. 2493, Forty-ninth Congress, flrtit session. Twcnty-flvo years eight 
months and four days; eighteen years five months and five days. Vacancies occasioned 
first by the death of Vice-Presidents : Clinton (1812), Gorry (18U), King (1853), Wilson 
(1875), and Ilendrickfl (1H85). Second by the succession t« the Presidency of the follow- 
ing: Tyler (1841), Fillmore (1850), Johnson (1805), Arthur (1881). Third by the resigna- 
tion of Calhoun (1832). 

' App., No. 1039d. See post, par. 46. 

« App., Nos. 1104a, 1227d, 1283e. 1352, 1368. 

* App., Nos. 1441, 1538. 

• App., Nos. 1247-1248, 1539. The former only provide<l for a new election in case there 
remained more than two years of the rim^xpired term. 



PROPOSED AMENDMENtS TO THE CONSTITUTION. 13 

in 1881. This resolution provided for the creation of the offices 
of First, Second, and Third Vice-Presidents, The incumbents 
of these offices were to be elected by the same method as is at 
present employed in the Presidential election, and in the case 
of a vacancy in the office of President or Vice-President it was 
to devolve upon the next officer in order of the rank of his 
office.* Two similar resolutions have since been proposed.* 

At the time the '* Presidential succession bilP' was before 
the Forty-ninth Congress, in 1886, Mr. Dibble of South Caro- 
lina proposed to the House a constitutional amendment, cre- 
ating and defining the office of Second Vice-President. In 
the absence of the Vice President from the Senate this 
officer might preside, and in case of a vacancy in the office 
of Vice-President he should succeed to the same.^ This reso- 
lution, slightly amended, was reported from the Committee 
on Election of President and Vice-President. The report of 
the committee, which is of considerable interest, claimed that 
the necessity of an additional officer in the line of succession 
was apparent from the experience of the past, but it criticised 
the "Presidential succession act" "as but a makeshift," and 
particularly objectionable in that it practically enables the 
President to designate his successor in case of his death or 
resignation.^ The resolution was not advanced to a vote, and 
although introduced in the succeeding Congress, it was not 
again reported,^ as the new succession act had met with the 
general approval of the country, 

86. QUALIFICATIONS OF THE EXECUTIVE. 

The amendments which have been proposed to the provision 
of the Constitution prescribing the qualifications necessary for 
President, for convenience of treatment will be considered in 
the four following groups: (1) Amendments to make the terms 
of the Constitution more stringent as regards naturalized citi- 
zens. (2) Amendments to make either Senators and Represent- 
atives or all officeholders ineligible, incidentally increasing the 



» App.,No.l535. 

«App.,No.iei9.16«7. 

>App.,Ko. 16G0. 

* House Report 2493, Forty -miith CongresB, first sesaion . * ' Wlien the Preeident appoints 
his Cabinet he at the same time exocnt«s a T>olitical will and testament, disixising of bis 
unexpired term in case he cease to bo President." 

»App.No.l706. 



74 AMERICAN HISTORICAL ASSOCIATIOl*. 

age qualification. (3) Amendments to make secessionists ineli- 
gible. (4) Amendments to remove the restrictions against nat- 
aralized citizens resident a certain number of years. 

(1) The State ratifying convention of New York, not satisfied 
with the provision of the Constitution which rendered a foreign- 
born person who was a citizen of the United States at the time 
of the adoi)tion of this Constitution eligible to the Presidency, 
proposed that this article be so amended, ^^That no person, 
except natural-born citizens, or such as were citizens on or 
before the 4th day of July, 1776, or such as held commissions 
under the United States during the war and have at any time 
since the 4th day of July, 177G, become citizens of one or other 
of the United States, and who shall be a freeholder, shall be 
eligible to the places of President, Vice-President, or member 
of either House of the Congress of the United States." * This 
resolution was not introduced in the First Congress, but in 
(July) 1798, when the country was excited by the foreign com- 
plication, and the alien and sedition acts had just been passed, 
somewhat similar amendments were proposed in both the Sen- 
ate and House by members from Massachusetts in response 
to a resolution passed by the Massachusetts and Connecticut 
legislatures.* The resolution proposed to render ineligible for 
the Presidency and to disqualify from service in Congress all 
but native-born citizens, or those resident in the United States 
at and since the Declaration of Independence. This was a 
Federalist afiront to Gallatin, who had strongly opposed the 
alien and sedition act.' The Massachusetts and Connecticut 
resolutions further suggested as an alternative amendment, 
in case the above proposition should not be agreeable, the ex- 
clusion from these offices of all persons not naturalized at the 
passing of the amendment and all such as have not resided 
fourteen years in the United States previous to their election.* 

(2) In addition to the resolution making a Senator or Repre- 
sentative ineligible to any civil office or appointment, treated 
elsewhere,' there were resolutions introduced which stipulated 
in specific terms that no member of either House should be 
eligible to the office of President or Vice-President. The one 
presented in 1846 continued the restriction for four years there- 



^ App., No. 50. 

 App., No8. 331, 333, 3331). 

"Schouler, Vol. i, p. 401. 

* App., No. 333. lieaolutinn tabled. 

* Ante, par. 11. 



PROPOSED AMENDMENTS TO THE CONStlTTTTION. 75 

after,* and one of two suggested in 1872 for two years there- 
after.' Another resolation, more general in its provisions, but 
doubtless including Senators and Eepresentatives among the 
class of persons restricted, was proposed in 1822.^ By its pro- 
vision any person holding any Government office at any time 
within four years next preceding the Presidential election was 
ineligible to the Presidency. This same resolution proposed in- 
creasing the age qualification from 35 to 45. In 1826 an amend- 
ment suggesting this same age qualification was introduced. ^ 

(3) The amendments proposing the disqualification of seces- 
sionists were the same as those considered under the head of 
the Legislative department.* 

(4) In the last of the "sixties" and the early "seventies," a 
movement was set on foot to enable naturalized citizens who 
had been fourteen years resident in the United States and 
fulfilled the qualifications as to age to become eligible to the 
Presidency. Four amendments proposing such a change in 
the Constitution were introduced during this time.® 

37. CHOICE OF PRESIDENT AND VICE-PRESIDENT. 

!N^o question gave the framers of the Constitution so much 
trouble as the question of the method of the choice of the 
Executive.'' The Convention, after vacillating between several 
plans, finally fell back upon the system of an indirect election 
through an electoral college.^ This method of choosing the 

» App.,No.746. 

s App., Nos. 1347, 1351. 

" App., No. 607. By Mr. Woodson of Kcntacky. 

* App., No. 561. In 1882 an amendment was proposed making Cabinet officers ineligible 
to the Presidency. App. No. 1551. 

*Post, par. 128; ante, par. 11. 

" App., Nos. 1226, 1332, 1337, 1358. One was reported adversely. The motion by Mr. Mor- 
gan of Ohio, the framer, to suspend the rules and pass the resolution was rejected in the 
c«se of each of the last two of these propositions. 

'Wilson's remark in the Pennsylvania convention, Elliot, ii, p. 511; Madison's lett«r of 
1823; ibid., Ill, p. 332. 

"Eleven different methods for selecting the Chief Executive were suggested: (1) By 
the National Legislature, by Ed. Randolph, Elliot's Debates, i, 144 ; V, 128. (2) By the State 
executives, Elbridge Gerry; ibul,, i, 167; v, 174. (3) By the Coogress constituted as 
under the Articles of Confederation, William Patterson; ibid., i, 176; v, 192. (4) By elect- 
ors to be chosen by the people, Alexander Hamilton ; ibid., i, 179; v, 205. (5) By electors 
to be chosen by the people of the several States, Gouvemeur Morris ; ibid., i, 262; y,473. 

(6) By electors to be chosen by the people in districts, James Wilson ; ibid., i, 156; v, 143. 

(7) By electors to be appointed by the State legislatures, Oliver Ellsworth ; ibid., i, 211 ; 
y,338. (8) By electors to be taken by lot from the National Legislature, James Wilson; 
ibid., 1, 217; v, 362. (9) By the National Legislature, each State having one vote, Mr. Day- 
ton, ibid., I, 262 ; V, 473. (10) By direct vote of the people, Mr. Carroll ; ibid., 1, 283 ; v, 472; 
Goayemeur Morris (by citizens) ; ibid., i, 208 ; v, 323. (11) By electors to be chosen for each 



76 AMERICAN HISTORICAL ASSOCIATION. 

President was without doubt suggested by the system of elect- 
ing Senators under the constitution of Maryland.' In that 
State "the Senators were selected by a body of electors chosen 
every five years by the inhabitants of the State for this particu- 
lar purpose and occasion."^ The principal considerations which 
led the members of the convention to favor this system was, on 
the one hand, their profound distrust of the people and their 
desire to preserve the relative influence of the States; and, on 
the other, their fear that if the election should be given to 
Congress the Executive might become dependent upon the leg- 
islative department,^ Therefore, they determined to place the 
election in the hands of a small body of men " to be elected 
on account of their wisdom and character," who, it was ex- 
pected, being entirely independent in their action of the people 
and the Congress, would exercise "discretion and discernment'' 
in the choice of men " preeminent for ability and virtue."* No 
feature of the new instrument seems to have been contem- 
plated by the framers with so much satisfaction and to have 
aroused so little opposition in the ratifying conventions as the 
article providing for the election of President and Vice- 
President.^ 

The system has not worked well in actual use, and no part 
of the Constitution has caused so much dissatisfaction and 
hence given rise to so many amendments to effect a change.*^ 
Although the letter of the instrument remains only slightly 
amended, in practice its spirit has been completely perverted 
from what was intended by its framers. The electoral colleges 
instead of being deliberative bodies are pledged in advance 
to vote for certain men, and hence have become mere agents, 
automata.*^ No better idea of the way in which an amendment 
is practically obtained, when it proves impossible to secure a 



state in auch manner as the legislataro thereof muy direct. From Committee August 
31, 1787. Adopted. Several of the above were adupted, only to be reconsidered and 
defeat«d. That for the election by the two Houses of Congre.sM was three times adopted, 
once unanimously, and as ofUm reconsidered and rejected. See Atlantic Monthly, vol. 
42, 543; Xo. Am. Rev., vol. 140, February, 1885: McKnight, The Electoral System of the 
Cnited States, pp. 221-224; O'Neil, The American Electoral System, chap. XI. 

' Constitution of Maryland (1776), Articles xiv-xviii. 

'J. n. Robinson, Original Features in the United Stattis Constitution. Annals of Am. 
Acad., Vol. I, p. 229. Stevens, Sources of the (/onstitution, pp. 153-154. note. 

•McKnight, pp. 30-33. 

* Senator Morton'.s speech. Forty-third Congress, second session, Cong, Rcu'ord, p. 627. 

*'*The Federalist,"' No. 67; also remarks of James Wilson and Chief Justice M<'Kean 
in the Pennsylvania convention. Elliot, ii. pp. 51 1, 542. 

« Story, II, pp.29a-301. 

'Morton's speech as above. Bryce, i, pp. 40-t4. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 77 

constitutional amendment, can be gained than by examining 
the way this system of election has worked in actnal practice. 
As a recent writer remarks:* "The legal processes of consti- 
tutional change are so slow and cumbrous that we have been 
constrained to adopt a serviceable framework of fiction which 
enables us easily to preserve the forms without laboriously 
obeying the spirit of the Constitution, which will stretch as 
the nation grows." 

38. CHOICE OF PEESIDENTIAL ELECTORS: THE TWELFTH AMEl^DMENT. 

For the first two elections the system of electing President 
and Vice-President worked smoothly, but by the time of the 
third election all was changed. Political parties had come 
into existence,' and Washington, who insisted upon retiring, 
was the only man who could command the united support of 
the entire nation. It at once became evident that a change 
was desirable, for the election of 1 796 proved that by the exist- 
ing method the will of the party in majority might be defeated 
by the elevation to the first j^osition of the candidate who had 
been selected for the second place through the refusal of one 
elector to carry out the intention of the party. It also might 
prevent, as it did in this election, the President and the Vice- 
President from being of the same x)olitical party, inasmuch as 
some of the electors, fearing the result of a tie vote between 
their party candidates, threw away their votes for the second 
I)osition, while thereby insuring the election of their candidate 
for the Presidency they i)ermitted the opposition's candidate 
to secure the Vice-Presidency. 

As early as January 9, 1797, even before the electoral vote 
was counted, Mr. Smith of South Carolina proposed a resolu- 
tion declaring that the Constitution ought to be so amended 
that the Presidential electors be obliged in giving their votes 
to designate the person for whom they vote for President and 
Vice-President, respectively.^ A very similar resolution was 
introduced in each of the three following years by as many 
different persons,^ and the legislatures of Massachusetts and 



• Woodrow Wilson. CongTcs.sional Government, p. 242. 

*Even in 1789 tirkets bearing names of electors -were placoil in the fieUl, bntby 1796 
ple<l};e(l lists of electors \rere common, and iu Pennsylvania the beginning of the conven. 
tion system was in operation. In 1800 Congressional caucuses to nominate candidates 
and thus forestall the action of the electoral colleges were first held. O'Xeil, pp. 35, 46, 70. 

»App., No. 328. 

* App., Nos. 329, 334, 336. 



78 AMERICAN mSTORICAL ASSOCIATION. 

• 

Vermont favored this change.^ No decisive action was taken — 
a further trial of the old system was needed to show more fully 
its dangers. The election of the year 1800 revealed anew the 
inadequacy of the existing system. The dissatisfaction already 
felt was greatly intensified by the critical experience of the tie 
vote in this year. The legislatures of three States, Vermont, 
New York, und North Carolina, presented resolutions to Con- 
gress early in the year 1802, proposing an amendment to the 
Constitution in this particular.* In response to the desire of 
the great body of the people, resolutions providing for this 
change were immediately presented in both Houses.^ In the 
closing days of the session the House passed the amendment 
by a vote of 47 yeas to 14 nays. The resolution was immedi- 
ately brought to a vote in the Senate, but lacked one vote of 
the necessary two-thirds, the vote standing 15 to 8.* 

At the opening of the next session resolutions to change the 
method of election were reintroduced, but were postponed 
until the next Congress.' In the fall of 1803 the Vermont 
legislature renewed their proposal, and Ohio instructed their 
Eepresentatives to favor the change.^' A resolution was pre- 
sented in the House on the first day of the session of the new 
Congress, to which several amendments were proposed.' After 
taking into consideration the different propositions, the select 
committee reported a resolution to amend the method of 
electing the Executive by requiring that the electors should 
designate which votes they cast for President and which for 
Vice-President. No change was to be made in the manner of 
choosing the President in the eventual election, but the chance 
of its occurrence was lessened.^ This resolution, after several 
unsuccessful attempts had been made to amend, passed the 
House by a vote of 88 to 31. The Senate postponed its con- 
sideration, as meanwhile they had under discussion a resolu- 
tion of their own, which had been introduced by Mr. Clinton 
of New York. After various amendments to it had been 



1 App., ^o9. 334a, 334b. Maryland also, duriug the winter of 1800-1801, passed resolu- 
tions proposing an amendment for the establishment of a uniform mode for the choice of 
electors. App., Xo. 341a. 

» App., Nos. 342, 344, 34«, 351. 

> App., Nos. 345, 352. The House proposition in its original form made provision also 
for the clioico of electors in districts. 8e« post, par. 39. 

*App., No. 345. 

•App., No. 354. 

•App., Noa. 360, 361. 

'App., No. 356. 

* Xbe number of candidates sent to the Uouse redacted from live to three. App., No. 359, 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 79 

accepted, the Clinton resolution passed tbe Senate by the vot« 
22 yeas to 10 nays.^ 

Although all sections of the country, Eepublican and Fed- 
eralist alike, had in previous years sought this change,^ the 
amendment now met with the systematic opposition of the 
Federalists, who seemed determined either to defeat or muti- 
late it. As soon as the Senate resolution came before the 
House the Federalists raised the cry of unconstitutionality, on 
the ground that the resolution had not received the vote of 
two-thirds of the Senate, but only two-thirds of the Senators 
present. The Republicans met this objection by appealing to 
precedent in the case of some of the first ten amendments, 
showing that two-thirds of the members present fulfilled the 
constitutional requirement.^ All their attempts to postpone 
or to amend were in vain,^ and even their appeal to State 
rights was disregarded, for the House, on December 9, 1803, 
concurred with the Senate by the exact constitutional major- 
ity — 84 yeas to 42 nays, the vote of the Speaker being required 
to make the necessary two- thirds majority.^ 

The amendment was sent to the States at a favorable time. 
The Eepublicans were in the ascendency and Jefferson, who 
was a candidate for reelection, was at the height of his popu- 
larity, The next Presidential election was approaching, and 
the legislatures which assembled shortly after the submission 
of the amendment took prompt action. Ten States shortly 
ratified, and a proclamation of the Secretary of State, dated 
September 25, 1804, declared the amendment in force.® The 
legislatures of Massachusetts, Connecticut, and Delaware alone 
rejected it.'' ' " Each of these declared it unwise, impolitic, and 
unconstitutional."^ 



» App., No. 358. 

 See speech of Gregg of Pennsylvania, who Hhowed that the measare was not a par- 
tisan one. Annals, p. 701. 

■Annals of Cougresa, Eighth Congress, first session, pp. 648-653: post, par. 183. 

4 To abolish the Vice-Presidency, ante, par. 34; to prevent the Vice-President acting as 
President in case of a failure to elect by the House, when the election devolved upon it; 
to prevent reducing the number of candidates to be sent to the House. They claiined the 
proposed change violated the spirit and design of the Constitution. O'Neil, p. 252. 

*0nly three Representatives from New England voted for it. 

* See list after App., No. 358. McMaster, in, pp. 186- 187. 

» The New Hampshire legislature passed it, bat the governor vetocnl it. Post, par. 185. 

* McMaster, in, p. 187. See also O'Neil, p. 95, for sectional address issued to the people of 
Connecticut, which was in part as follows: "The plan of this amendment is to bury 
New England in oblivion and put the reins of Government into the hands of Virginia 
forever. They, the Democrats, have seized on a moment of delirious enthusiasm to make 
a dangerous inroad on the Constitution and to prostrate the only mound capable of resist- 
ing the headlong influence of the great States and preserving the independence and safety 
pf the small ones." 



80 AMERICAN HISTORICAL ASSOCIATION. 

The twelfth amendment was a virtual recognition of the 
existence of i)olitical parties, and stimulated the growth of 
the system of the nomination of candidates and the pledging 
of electors, which had already made its appearance.* 

39. CHOICE OF ELECTORS BY DISTRICTS. 

The lack of uniformity in the choice of electors ^ early led to 
various attempts to secure an amendment to the Constitution 
prescribing a method which would be binding upon all. The 
mode most frequently suggested during the first quarter of 
this century was for the choice of Presidential electors by dis- 
tricts.^ Some forty-two amendments of this character have 
been proposed. They naturally fall into two classes; the one 
providing that the States should be divided into as many dis- 
tricts as it was entitled to Senators and Eepresentatives in 
Congress; the other for the choice of the electors in Congres- 
sional districts in each State, and the two remaining to be 
selected in some other way. 

The first of these objects has been sought by thirty resolu- 
tions, introduced for the most part between 1800 and 1826.* 
The first proposition of this character was presented by Mr. 
I^icholas of Virginia, in 1800,^ together with a resolution for 
the choice of Eepresentatives by districts.^ In 1802 the reso- 
lutions of the legislatures of Vermont, New York, and North 
Carolina, calling for the election of Presidential electors by 
districts, as well as the designation of the person voted for as 

> For c«ntralizing effect of amendment, see Adams, History of the United States, ii, 132- 
133 ; Story, ll, 302-304. 

* See post, par. 40. 

> In the election of 1796 six States employed the district system, viz: Massachnsetts, 
Virginia, Kentucky, Korth Carolina, Maryland, and Tennessee (divided into three dis- 
trict«). O'Neil, p.63. Wilson had suggested the plan in the Federal Convention, ante, 
p. 75, note 8. Gallatin favored the district system, letter to Jefferson September 14, 
1801. Writings of Albert Gallatin (ed. by Henry Adams), i, p. 49. Hamilton also favored 
it, letter to Morris, April 0. 1802, Works yi, p. 556. Madison in a letter to George Hay of 
August 23, 1823, writes : "The district nio<Ie was mostly, if not exclusively, in view when 
the Constitution was framed and adopted." He shows advantage of the system and gave 
a "sketch" of an amendment which he drew up ''for this faulty part of the Constitution 
in question." Works, iii, pp. 332, 335. Jefferson seems also to have approved of it. 
McKnight, p. 387. See App., No. 77. 

«The following introduced between 1800-1826: App., Kos. 338,340,345,346,350,353.355, 
357, 373, 407, 409, 414, 450, 453, 455, 460, 463, 491, 532, 534, 537, 640, 555. 556, 738. 
^ * Virginia had employed the district system in the three previous Presidential elections, 
bnt in 1800 by advice of Madison and Jefferson, who feared that their party might not 
secure all the electors, the change t-o the general-ticket nystem was made. O'Keil, p. 75. 
The Federalists In Massachnsetts also changed from the district system to joint ballot by 
the legislature for the same purpose. 

• Ante, par. 24. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 81 

President and Vice-President were presented to Congress. 
Such an amendment was favored by the leading men in both 
X>olitical parties.^ Amendments proposing the district system 
were introduced in both branches of Congress. The resolu- 
tion which passed the House in this session making provision 
for the designation of the persons voted for as President and 
Vice-President in its original form, also contained an article 
providing for the choice of electors by districts.* The resolu- 
tion was divided so that the article establishing the district 
plan was not brought to a vote. 

Owing to the great excitement which prevailed in Xorth 
Carolina in consequence of the act of the legislature of that 
State in 1812, depriving the people of their traditional right 
to choose the electors, the Senators and Representatives from 
Korth Carolina were particularly zealous in advocating this 
amendment.^ The circumstances attendant upon the choice 
of electors iu Massachusetts and Xew Jersey in this same 
year also showed the desirability of a uniform system being 
prescribed. In the former State a deadlock between the two 
branches of the legislature had almost deprived the State of 
its vote, which loss was averted only by the calling an extra 
session of the legislature.* In the latter State, on the very 
eve of the election, the legislature, for partisan purposes, took 
the direct choice of electors to itself, depriving the voters of 
their expected suffrage.^ 

These events so aroused the Senate that the amendment 
proposed in 1813 by Senator Turner of North Carolina, ui>on 
the instruction of the new legislature of his State, passed 
that body by the vote of 22 to 9, but was not advanced to a 
vote in the House.^ A similar amendment was repeatedly 
urged by Kepresentatives from all sections of the country 
during the next few years.'' In 1816 the legislature of Massa- 



I Hamilton had favored this method in the Convention of 1787, and the passage of the 
resolutions by the New York legislature at this time were duo to his efforts, ably seconded 
by Do Witt Clinton. For attitude of Gallatin and Jefferson, see note 3 above. 

* Ante, par. 38. 

* App., Kos. 407, 414, 450, 455, 460, 463, 540. The action of the legislature was defended 
on the groand that large numbers of voters favorable to Madison had enlisted in tlie 
Army; that their absence might have made the Stat'e doubtful. O'Ncil, 106; Nilos' 
Register, ix, 349. 

♦McMaster, IV, 195; O'Neil, 104-105; Niles' Register, in, 128; IX, 349. 
•McMaster, IV, 19^-194; Stanwood, Presidential Elections, 61; O'Neil, 105-106; Niles' 
Register, in, 160. 

* App., No. 409. See Kilos' Register, in, 174-175. 

» App., Nos. 414, 450, 453, 45r). 460, 463, 491. 507 h, 5.TJ, 534, 537, 540, 555, :>r>G. 

H. Doc. 353, pt 2 



82 AMERICAN HISTORICAL ASSOCIATION. 

chusetts added her indorsement of the district system to that 
of the States already referred to,* This was significant in 
view of her recent experience. The hostility to the Congres- 
sional caucus system of nominating candidates favored in this 
same year the passage of such an amendment^ which was urged 
with renewed vigor by its champion, Mr. Pickens of North 
Carolina, but the support of two-thirds of the members of 
either branch of Congress could not now be secured.* 

Some of the later amendments presented some peculiarities, 
one or two of which are worthy of mention. The one proposed 
by Mr. Livingston, in 1824, was extremely novel.^ It provided 
that the voters meeting in their respective districts shall vote 
for one person to be President, another to be Vice-President, 
and the third to be an elector. The person having the greatest 
number of votes as President, Vice-President, and elector, 
respectively, shall be considered as entitled to the vote of such 
district for the said office. The electors to be called upon to 
serve only in case two persons have a majority of the whole 
number of district votes for President, in which event they 
shall assemble in their respective States and choose one of the 
two i)ersons to be President. 

The need of uniformity in the filling of vacancies in the 
electoral colleges was shown in the election of 1824.* This 
doubtless suggested the provisions of the amendment intro- 
duced by Mr. Saunders of North Carolina, in the following 
year.' It provided that when the electors assembled in their 
respective States, in case of the nonattendance of any elector, 
the electors present should fill the vacancies.^ It further stipu- 
lated that the person having the greatest number of votes for 
President shall be President, if such number be one-third of 
the whole number. 



1 App., No. 453. Again, in 1819, App., No. 488a b. The Virgiuia legislature also approved 
of tlio North Carolina proposition in 1816. App., No. 45Ia. But the legislatures of Rhode 
Island, Connecticut, and Ohio disapproved. Massachusetts Archives, Misc. 8178-8183. 

> App., Nos. 453, 460. Pickens's speech is quoted in part by McMast^r, iv, 369-371. An 
editorial in Nilcs' Kegister (ix, 349) refers to this amendment, after the failure of Con- 
gress to consider it favorably, and says : "And 'we jog on in the old way, swindling and to 
swindle.'* The legislature of Illinois, in 1821, passed resolutions favoring an amendment 
for a uniform mode of electing President and Vice-President. App., No. 507b. 

• App., No. 537. 

• In that election vacancies in the college of electors had been supplied in New York 
by the electors present, in New Jersey by the governor, and in Virginia by the legisla« 
ture. 

•App., No. 540. 

• This was done in Texas in 1872. Cong. Roconl, Forty-third Congress, second session, 
p. 627. Also in 1876 in Michigan, Oregon, Pennsylvania, Khode Island and Vermont. 
Stanwood, pp. 340-342. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 83 

A group of seventeen additional resolutions made a distinct 
provision in regard to the choice of the two electors at large 
from each State, in addition to the electors chosen by districts.^ 
These, with three exceptions, were introduced between the 
years 1817 and 1826. Senator Dickerson of New Jersey, in 
December of 1817, after laying before the Senate the proceed- 
ings of the legislature of his State in relation to amending 
the Constitution in regard to the election of President and 
Vice-President, introduced a resolution providing for its 
amendment in this particular, the two additional electors to 
be chosen as the legislatures of each State should direct.^ 

The legislature of North Carolina which, up to the previous 
session of Congress, had continued to advocate the other 
method of the division of State into electoral districts, now 
instruct their Senators to use their best endeavor to secure an 
amendment similar to the one proposed by Senator Dickerson.^ 
The New Jersey resolution was not brought to a vote until 
March, when, although it received a good majority, it failed 
for the lack of the two-thirds vote of the Senate. To the reso- 
lution of these two States, at the next session of Congress, the 
legislatures of New York, New Hampshire, and Connecticut 
added the weight of their indorsement.* Again Senator Dick- 
erson presented his resolution. This time the resolution was 
debated at much length, and three times referred to commit- 
tees, and finally passed (28 to 10) the Senate February 3, 
1819, but failed to be considered favorably by the House.* 

Senator Dickerson continued to introduce this resolution in 
every session of Congress, with one exception, down to 1826, 
presenting it in all eight different times.^ As he had been the 
first so he was the last to advocate its adoption at this period. 
This resolution passed the Senate twice afterwards, but each 



> App., >fo8. 468, 472, 482, 484, 485, 488, 489, 407, 500, 506, 5L9, 525, 529. 577, 869b, 1247. 1324. 

 App.,No.468. The electors, when convened for the purpose of giving their votes, 
shoald have the power to fill snch vacancies as there should be in their number. By act 
of 1845, " Each State may provide for the filling of any vacancy or vacancies which may 
occur in its college of electors, when such college meets to give its electoral vote." Kev. 
Stat. IT. S., sec. 133. J. Q. Adams, while he refused to recommend any amendments to 
Congress while he was President, nevertheless favored the choice of the electors by dis- 
tricts, the two at large by the legislature of each State. But he would not change the 
contingency of its devolving upon the House of Representatives in case of no choice by 
the electors. "The House of Representatives was, of all others, the body peculiarly 
fitted for making the election.'* Memoirs, vii, p. 301. See post, par. 50, 

•App., No. 472. 

* App., Xos. 482, 484, 488. 

 App., Ko. 485. 

« App., Nos. 489, 500, 506, 519, 527, 577. 



84 AMERICAN HISTORICAL ASSOCIATION. 

time it faUed to be brought to a vote in the House.' This 
identical proposition was introduced by a Eepresentative of 
South Carolina in the House in 1820 and secured a vote of 92 
yeas to 64 nays, but this was short of the necessary two-thirds. 
The amendment never again came so near to success, for if it 
could have been pushed through the House it would have 
speedily received the indorsement of the Senate.* 

An amendment, the first part of which was similar to that 
proposed by Senator Dickerson, was reported by the select 
committee of the House in 1823.^ It differed, however, in many 
other details. The electors, besides filling vacancies in their 
number, were to appoint the two electors at large.* 

Over thirty-five years later Mr. Douglas revived the proposi- 
tion for the choice of electors by districts.^ Two isolated 
propositions, introduced in the later "sixties,'' called up this 
plan for the last time. The first of these departed in certain 
features from the early plan in that only the States which were 
entitled to more than two Kepresentatives were to be divided 
into districts, and only in such States shall two additional 
electors be appointed.^ The second resolution conferred the 
choice of the two electors at large upon the voters of the State.' 

40. CHOICE OF ELECTORS BY GENERAL TICKJST IN EACH STATE. 

The States have by the Constitution the right to choose 
electors as they prefer, except that Congress may fix the time 
of the election. As a result, in the early years a great variety 
of methods were in use, as, in the election of 1824, the electors 
were chosen in six of the States by the legislature,^ in others 



^ In 1820 and 1822. App., Nos. 489, 506. 

* App., No. 497. Ever afterwards the House refused to consider this amendment. 
•App., No. 524. 

* This method of choosing the two additional electors was employed in Maine and New 
York in 1828. Stanwood, p. 100; post, par. 40. Other clauses of this amendment made 
provision for case of no election, and division of the States into districts by Congress, if 
necessary. Post, pars. 50, 53. 

* App., No. 869(1). The two electors at large to be chosen by the legialaturt^ in joint 
convention. 

* App.,No8. 1247, 1248. A second election provided for In ease no one received a major- 
ity of all the votes. If after the third election there is a tie, then it shall be decided 
by lot. 

» App., No. 1324. 

"Delaw^are. South Carolina, Vermont, New York, Georgia, Louisiana. It has been 
claimed that the election by the legislature of a State was a usurpation and " a departure 
from the Constitution." Keport of Committee on Election of President, Forty -fifth Con- 
gress, second sesHion, II. Rep., Vol. iv. No. 819. McDuiKe, in a speech in 1825. For refer- 
ence, see App. No. 542; but in McPhorson v. Blacko (146 U. S., 1.) it was held that the power 
of the legislature to fix the method was complete. See also In re Green, 134 U. S., 377. 



PROPOSED AMENDMENTS TO THE CONSTlTDTION. 86 

by districts, but in the larger number by general ticket.' The 
method of election was frequently changed, *' according as the 
needs of the ruling party were best served." As indication of 
the need of a uniform system to prevent this political jugglery, 
Mr. Pickens cited, in a speech in 1816, " the disgraceful strug- 
gles which cost New York her electoral vote in 1789, and 
almost deprived Pennsylvania of hers in 1800 and Massachu- 
setts of hers in 1812, and the sudden change of New Jersey 
on the very eve of an election " as *■' so many cases in X)oint."* 
As the general-ticket system was by the " twenties'' in use 
in the majority of the States, an amendment adopting this 
practice seemed to be the one most likely to be successful ; 
accordingly, Mr. Hooper of New Hampshire, in order to secure 
uniformity in the Presidential election, introduced, in 1828, 
a resolution declaring that the Constitution ought to be so 
amended that in each State the electors shall be chosen by 
a general ticket.^ In the election of that year there was a very 
general change on the part of those States which had pre- 
viously chosen electors through their legislatures to the popu- 
lar system. The old method of choice by the legislature still 
obtained only in Delaware and South Carolina. In Maine and 
New York one elector was chosen for each Eepresentative dis- 
trict, and the persons so chosen selected the two additional 
electors. Special electoral districts existed in Maryland and in 
Tennessee. The States which had repeatedly tried in vain for 
several years to secure the adoption of an amendment establish- 
ing the district system, especially Massachusetts, New Jersey, 
and North Carolina, went with the majority and adopted the sys- 
tem of election by general ticket, making eighteen States in 
all that employed this method.* In 1832 all but two States 
adopted the general-ticket system. South Carolina alone 
adhered to her old system of legislative appointment, which she 



1 Stanwood, p. 84 ; O'Neil, p. 122. For table of methods used by the States, see The 
Nation, vol. LII, p. 422; also reprinted in Hinsdale's Am. Govt. (2d ed.), p. 259. Six by 
district and twelve by the genoral-Mcket system in 1824. 

* Ante, par. 39 ; MacMaster, iv, 369-371 ; Stanwood, 15, 38, 39, 49, 60. Other cases, Massa- 
chusetts (1804), MacMaster, iii, 187; Niles' Kegister, ix, 349. Massachusetts changed its 
method of choosing electors in every election between 1706 and 1820. In 1796, by district 
system; 1800, bj' legislature on Joint ballot; 1804, by general ticket; 1808, by the legisla- 
ture; 1812, electors chosen in the old common pleas circuits (district system) ; 1816, by the 
legislature; 1820. by districts; 1824, by districts, the two electors at large chosen by the 
voters of the entire State ; 1828, by general ticket. 

'ApPmNo. 584. This had been suggested in the Constitutional Convention of 1787. 
Ante, par. 37. 

^Stanwood's Presidential Elections, p. 100. 



86 AMERICAN HISTORICAL ASSOCIATION. 

retained down to the civil war.* Maryland used the system of 
electoral districts for the last time in 1832.^ Thus, isifter 1832, 
the method of choosing electors had become nearly uniform 
throughout the country without the resort to an amendment 
to the Constitution.^ With but few exceptions, this system 
has not been departed from, although a State legislature is 
competent to establish any method it may choos^/ 

41. ELECTION OF THE PRESIDENT BY THE PEOPLE AS THE LEGISLATURE 

OF THE STATES SHALL DIRECT. 

The action of the States also took away the reason for another 
group of amendments providing that the vote for President 
and Vice-President shall be given in such manner as the legis- 
lature of eaeh State may direct. 



* South Carolina retainiMl this sj'stem because the lower divUion of the State contained 
twice 08 many nlavcs but leas number of free popniatiuu than the up)>er. "The lower 
diviHion was intrenched in the leglHlalure." 0*Neil. p. 126, note. See letter of Calhoun 
defending the practice, November, 1846. Work.H, vi, p. 25'. 

»Stanwoo<l, pp. 110, 118. 

* It is claimed that " the practical effect of the electoral system has been to increase the 
relative importance of the largo States, and the practice of voting by general ticket was 
introduced by the largo States for that purpose, and when introduced all were compelled 
to follow it." House Re]K>rt, Vol. iv, No. 819, Forty-flfth Congress, second session. The 
large States were not the first to adopt the general-ticket system ; in 1780 three States 
adopted it, viz, Pennsylvania, Now Hampshire, and Maryland ; of these only Pennsyl- 
vania could be reckoned as a large St^te. The number varied in nearly every election, 
but by 1816 five States used it, viz, New Jersey, New Hampshire, North Carolina, Rhode 
Island, and Ohio; of these only North Carolina could be reckoned as a large State, being 
sixth in population. The great change came in 1824, when twelve States seem to have 
ailopted the system, viz, Fennsylvania, New Jersey, Connecticut, New Hampshire, Vir- 
ginia, North Carolina, Khode Island, Ohio, Indiana, Mississippi, Alabama, Missouri— the 
second, third, fourth, and fifth St«tes in population and eight small ones. In a letter of 
August 23, 1823, Mr. Madison wrote: " The district mode was mostly, if not exclusively, 
in view when the Constitution was framed and adopted, and was exchanged for the gen- 
eral ticket and the legislative election as the only expedient for baflling the i>olicy of the 
particular States which had set the example." Works, Vol. ill, pp. 332-333. Governor Car- 
roll, in his message to the legislature of Tennessee, September 19, 1831, recommends the 
establishment of the general-ticket system of choosing electors, in order that the State 
may have its ''full weight in the election for President and Vice-President hereafter." 
Am. An. lieg.. Vol. vii, p. 273 (1831-32). From the above it is clear why the system became 
general. 

* The following are the only cases of departure from the general-ticket system : The 
reconstructed State of Florida in 1868 and the newly a4lmitted State of Colorado in 1876 — 
there being iuautlicient time to provide for a general election— chose their electorn through 
their legislutnres, Stanwood, pp. 268, 328, 372. In 1892 the legislature of Michigan de- 
parted from the prevailing system and adopted the district system, one elector being 
chosen in earh Congressional district, and for the choice of the two remaining electors 
the State was divided into two diHtricts. each of which chose one of the electors at large. 
The constitutionality of this latt4'r provision was questioned, but sustained by the 
Supremo Court of the United States in McPlierson v. Blacko, 146 17. S., 1. The danger of 
other States following the example of Michigan led President Harrison in his annual mes- 
sage (December 9, 1891) to recommend that the permanency of the prevailing method 
should be secured by a eonsritntional amendment. Cong. Reconl, pp. 18, 19. This recom- 
mendation was not profUu'tive of rt^sults, but the next legislature of Michigan, being of 
a different political complexion from the legi.<4lHture which had enacted the obnoxious 
law, repealed the same. S<^o Bryce, l, p. 43. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 87 

The first of these amendments was proposed by Mr. Boon 
of Indiana, in 1826, and it provided that the vote shall be a 
direct vote, given as the legislature may prescribe.^ Two 
others were presented in the House shortly after. One of these, 
offered by Mr. Hemphill of Pennsylvania, while still retaining 
the electoral college, provided that the people of the State 
should appoint, in such manner as the legislature should direct, 
the electors to which it was entitled,^ thus insuring an election 
of the electors either by general ticket or by districts, and not 
by the legislature, as was still the practice in some of the States. 

The other proposition, that of Mr. Livingston of Louisiana, 
was more explicit.^ It stipulated that there should be a direct 
election by the people, either by district or general ticket, as 
the legislature of each State should direct^ such mode not to be 
changed for a period of eight years, and in no case to be changed 
within three years of any Presidential election.^ 

42. ELECTION OP PRESIDENT AND VICE-PRESIDENT BY A GENERAL 

DIRECT VOTE. 

Several of the amendments just discussed i>rovide at the 
same time for some different method of electing the President 
in case there is no choice in the first election.^ The same object 
was sought by another group of amendments intended to do 
away altogether with the machinery of electors. Thirty-seven 
propositions for the election of President by a general direct 
vote have been introduced, twelve of which fall in the period 
embraced by the years 1826 to 1837.® 

In the election of 1824, Andrew Jackson, although he had 
somewhatthelargest popular vote,' lacked an electoral majority, 
and was then defeated in the House of Representatives by a 
combination of the Clay and Adams men for Adams. This 
result caused general dissatisfaction with the prevailing sys- 
tem of election among Jackson's adherents. The fact that he 

*App.,No.558. 

«App.,No.561, 

>App., No.572. Mr. Livingaton showed himself ready to further any scheme for the 
alteration of the existing method of electing President, fur iu 1824 he introduced one 
resolution to choose electors by districts ( App., No. 537), and in 1826, besides the above, 
he proposed a general direct vote. App., No. 568. See pars. 39, 42, 

^Post, par. 50. To prevent such cases as cited in par. 40. 

* Post, par. 50. 

• App.. Nos. 550, 554, 562, 568, 570, 572, 578, 683, 592, 628, 654, 669. 

^For estimate of popular vote, see Stanwood, pp. 87-88, who estimates Adams's vote 
as one-third of the popular vote. Niles' Register, Vol. xli, p. 444, claims that "the 
electoral vote obtained by Adams in 1824 represented a larger number of the people than 
the higher electoral vote of Jackson." 



88 AMERICAN HISTORICAL ASSOCIATION. 

bad polled the largest pojiular vote, togther with his iucreasing 
popularity, suggested a method, the adoption of whicli would 
prevent the people's choice from being overruled, namely, a 
direct vote of the people. State lines being disregarded alto- 
gether. Mr. McManusof New York first proposed this change 
in Congress January 4, 1820.^ Within the next four years a 
similar amendment was introduced eight times in the House, 
two of these proposals coming from the legislatures of Ohio 
and Missouri.^ In 1833 Senator Bibb of Kentucky called up 
the subject again, but the committee to which his resolution 
was referred reported as a substitute a proposition for the direct 
election of President by districts,^ 

Not until 1865 did the proposition again make its appearance. 
It was the first of a series of twenty-five resolutions of this 
character. Mr. Ashley and Senators Poland and Sumner were 
the most active in urging the adoption of this amendment during 
the early years of the second period of its popularity in Congress. 
Mr. Sumner advocated this change because the existing system 
was "artificial, cumbrous, radically defective, and unrepub- 
lican," and because, in common with Mr. Ashley, he expected 
that the proposed method would supersede thecaucusor conven- 
tion system of nominations.^ There is little reason, however, to 
suppose that the adoption of this system would do away with 
the nominating convention. The greater number of these prop- 
ositions required a majority of the popular vote to secure the 
election. In case no person received a majority twelve pro- 
posed a second election by the people,^ while four others 
provided for the final choice by one or both branches of Con- 
gress.^ Several others provided that a plurality of votes only 



' App., No. 550. 

s App., Noa. 554, 558, 562, 568, 578, 592, OOla. For peculiar provifiion of the Ohio resolution 
for the choice of electors to act only in case of no perAou receiving a minority, see post, 

par. 50; App., NoH. 578, 592. 

^ App., >i08. 628-630; post, par. 43. Forrenolutions from the legislature of Indiana approv- 
ing a change in the metho<l of election presented in 1837, and aUo suggesting a uniform 
serieA of three days for the election in all the States. App., No. 669, see post, par. 52. Some, 
as No. 554, provided that a plurality of votes should elect. 

* The jireamblo to the resolution, App., No. 1352, declared : '• The caucus or convention, 
after being the engine for nomination of President, allowing the people little more than 
to record itH will, becomes the personal instrument of the President when elected, giving 
him a dictatorial power, which he may employ in reducing the people to conformity with 
his purposes and ])ronioting his reelection, all of which is hostile to good government and 
of evil example," etc. See al.HO Ashley's speech, App., No. 1227b; Orations and Speeches 
by J. M. Ashley, pp. 774, and following pages. 

» App., Nos. 1104, 1127b, 1283c, 1352, 1.368, 1389, 1404, 1505. ir>36, 1626, 1668, 1695; post, par. 50. 

•r.y Joint convention of both Houses of Congress, App., Nos. 1078, 1314; by the Honse 
of Keprescntativea, App., Nos. 1354, 1361. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 89 

should be necessary to elect, but in case of a tie Congress 
should decided One of these proposed that the person having 
the highest number of votes should be President and the per- 
son having the next highest should be Vice-President, proba 
bly in the hope of restoring the original respect and regard for 
the latter office.'^ The greater number of these resolutions were 
introduced in the period from 1872 to 1878, and the majority 
were presented by members from Western States.^ 

43. ELECTION OP PRESIDENT AND VICE-PRESIDENT DIRECTLY BY 

DISTRICTS. 

A group of thirty-two resolutions, which also proposed con- 
ferring the choice of President directly upon the people, were 
designed to establish the district system.^ Tliese were similar 
to the propositions which had been introduced in the first quar- 
ter of the century, already discussed,^ save that they did away 
with the electors. The first of these was introduced in 1823 
by Senator Benton. From this time to the election of General 
Jackson, in 1828, this propositiou was urged in every Con- 
gress.^ Among these were three sets of resolutions in favor 
of the proposed change, from Tennessee, the General's State, 
while counter resolutions were received from other States.' 
In 1826 a ro^olution proposing this change was reported favor- 
ably by a select committee of the Senate through their chair- 
man, Mr. Benton.^ It was given extended consideration, but 
was not brought to a vote.^ The House spent six weeks of 
this session in debating McDuffie's resolution, which declared 
that the Constitution ought to be so amended that a uniform 
system of voting directly for President, by districts, should be 
established in all the States, and so altered as to prevent the 
election devolving upon Congress. The two parts of the 



1 App., No. 1058 ; see poat, par. 50. Foar provided for the decision of the tie for President 
by the House, for the Vice-President by the Senate, each member to have one vote, Nos. 
1408, 1420, 1443, 1446; two that the tie for either otiice should be decided by the House, 
Nos. 1359, 1367. 

«App.,No.l731. 

* Mr. TowBhend, of Hlinois, has introduced this amendment in every Congress since 1880. 
During the same period only one other member has proposed its adoption. 

4 App., Nos. 526, 541, 54Ia. 542, 544a, 547, 548, 552, 581a, 582, 600a, 601, 6J2, 610, 626. 627, 630, 631, 
632, 641, 646, 656, 659, 672, 739, 765, 770, 773, 813, 1228, 1240, 1519. 

* Ante, par. 39. 

*McDnffie of South Carolina proposed it three times. App., Nos. 541, 542, 582. 
'App., Nos. 541a, 548, 58Ia. Counter resolutions from Ohio and Indiana. Niles* Keg- 
Ister, XXIX, pp. 125, 369. Maine, MnAsachusett-s Archives, Nos. »Y*, » V^- 
•App., No. 652. 
*Mr. Dickerson proi>osod his plan ns an ainoDdracut thereto. Ante, par. 39. 



90' AMERICAl^ UlStORlCAL ASSOCIATION. 

resolution were voted upon separately, the House recording 
itself against the district system by a vote of 90 yeas to 102 
nays, but agreed to the second portion of the resolution.^ 

President Jackson, in each of his annual messages, strongly 
recommended that the Constitution be so amended, first, that 
the people should vote for the President and Vice-President 
directly ; " for ", said he, " in proportion as agents to execute the 
will of the people are multiplied there is danger of their wishes 
being frustrated; some may be unfaithful, all are liable to 
err;"^ and, second, as to prevent the election of President 
devolving upon the House of Representatives, arguing that if 
the different departments of the Government were to be kept 
distinct, that the choice of the Executive by either branch of 
the legislative department must be discontinued or the Execu- 
tive would become the creature of the legislative department.^ 

Although the President did not designate the specific 
method by which the direct vote should be given, yet it is 
known that he favored the amendment championed by his 
friend and supporter, Senator Benton. Mr. Benton changed 
the terms of the amendment which he had earlier introduced, 
to harmonize with President Jackson's views.* The first reso- 
lution proposed by him retained the provision that in case of 
no choice the election should devolve upon the House of Rep- 
resentatives, but the amendments presented by him after the 
election of Jackson stipulated that in the event of no election 
there should be a second election by the people between the 
two persons having the highest number of votes.^ Senator 
Benton remained true to the i)ledge he made in 1824,^ and con- 
tinued to present this same resolution at different times down 
to 1844. 

In the Twenty- third and Twenty- fourth Congresses select 
committees reported resolutions containing this provision."' In 
the course of the debate during the Twenty-third Congress, 
Mr. Benton declared that "the district system would break 



* App., No. 542. See post, par. 50. Tho speeches of Benton, Dickerson, and McDuffie 
are all valuable eb throwing mach light on the workin^.s of the existing system. 

* First Annual MesHage, App., No. 596. 

» App., Nos. 598, 602, 606, 610. 626. 631, 656, 659. For Madison's opinion, see Works, iii, p. 
332. For opposite view, held by J. Q. Adams, see Memoirs, vii, p. 301. Post, par. 50. 
« App., No. 526. 

* See post, par. 50. 

* Ho said: "He wonid pledge himself to the Senate and to the American people to con- 
tinue the subject with all the energy he was master of till he brought it to a conclusion." 
Gales & Seaton's Debates, p. 693. 

'App., Nos. 630, 656. 



PEOPOSED AMENDMENTS fO THE COl^STITUTION. 91 

the force of the large States ; " but the amendmeiit was opposed 
by Johu Tyler and other strong State Eights men because, as 
Tyler said, ^' it obliterated all State boundaries and dictated a 
course of action as if we were a nation and not a compact of 
States.'' They desired " to preserve the federative principle 
in the Constitution."* In spite of the efforts of President 
Jackson and Senator Benton, the amendment was never 
brought to a vote. 

This proposition was not suggested again until the early 
"fifties," when Andrew Johnson, then a member of the House 
from Tennessee, introduced a resolution similar to that of Mr. 
Benton's, in two different Congresses.-* At the next succeed- 
ing Congress, Mr. Ewing of Kentucky proposed the same 
amendment.-'^ The resolution received considerable discussion 
in this Congress. In support of the measure, Mr. Ewing said, 
that "it had been advocated for a period of thirty years by 
such men as Benton, Van Buren, Dickerson, McDufl&e, Hayne, 
Macon, E. M. Johnson of Kentucky, and recommended time 
and again by General Jackson, and opposed chiefly by Eufus 
King of New York."* 

In 1860, while a member of the Senate, Andrew Johnson 
again proposed this method of election, adding to the measure 
as a sop to the slave-holding States, in addition to the propo- 
sition to divide the judiciary equally between the slave and 
free States, the section that in the elections of 1864 the Presi- 
dent should be chosen from one of the slave-holding States and 
the Vice-President from one of the free States, in 1868 vice 
versa, and so alternating the President and Vice-President 
every four years between the slave and free States during the- 
continuance of the Government.^ 

Andrew Johnson evidently was convinced of the desirability 
of the election by the direct vote of the people, given in dis- 
tricts, for in 1868, when President, he sent a special message 
to Congress, proposing, together with other changes in regard 
to the Executive, such an amendment, and at the opening of 
the next session of the Congress, in his annual message he 
renewed his previous recommendation.*^ This amendment was 
proposed the last time in 1881 by Mr. Wallace of Pennsylvania. 



» Nilo«' Register, vol. xlvi, 421. Van Barcu favored the diHtrict sysiom, O'lileil, p. 253. 

* App., No8. 765, 770. 

» App., No. 773. 

*Cong. Globe. Thirty-third Cougress, first session, p. 283. 

•App., No. 813. 

•App., Nos. 1228, 1240. 



92 AMERICAN HISTORICAL ASSOCIATION. 

One interesting provision of this resolution was that the vote 
sboald be by secret ballot, thus foreshadowing the desirability 
of methods now in use in the majority of the States.^ 

44. ELECTION OF PRESIDENT AND VICE-PRESIDENT DIRECTLY BY A 
COMBINATION OF DISTRICTS AND VOTES AT LARGE. 

Corresponding to the amendments proposed in an earlier 
period by Senator Dickerson and others, for the choice of the 
electors in districts, there were introduced during the early 
"seventies," in both the House and Senate, propositions of a 
somewhat similar nature save that the electoral colleges were 
to disappear.* Senator Oliver P. Morton of Indiana, who was 
at this time the most earnest and zealous advocate of the 
necessity of a change, called up the question through a resolu- 
tion which he offered in March, 1873. It directed the Com- 
mittee on Privileges and Elections, of which he was chairman, 
"to examine and report at the next session upon the best and 
most practical mode of electing the President and Vice-Presi- 
dent, and providing a tribunal to adjust and decide all con- 
tested questions connected therewith."^ The committee, in 
May, 1874, reported, presenting a proposition, in seven articles, 
as an amendment to the Constitution.* It provided that the 
people should vote directly for the President, eaeh State being 
divided into districts equal to the number of Representatives 
to which it should be entitled. The person having the highest 
number of votes in each district for President should receive 
the vote of that district, which should count as one Presiden- 
tial vote. The person receiving the highest number of votes 

in the State should receive two Presidential votes from the 

• 

State at large. The candidate receiving the highest number 
of Presidential votes in the United States should be President. 
In case two persons have the same number of votes in any 
State, it being the highest number, they should receive each 
one Presidential vote from the State at large.' 

Additional sections of the same article made provision for 
applying the foregoing provisions to the election of Vice- 



> App., No. 1519. 

•Ante, par. 39. (1817-1826.) 

* Cong. Record, Forty-tfalnl Congress, special session, p. 30. 

< App., No. 1393. The report of the comniittoc which ncconipnnitMl the amendment was 
one of great ability. It was the work of Mr. Morton. Seimtc Koports. Forty-thinl Con- 
gn>BH, firnt session. Vol. II, No. 395. 

*If more than two, then no PrpRidential vote hIkiII be counted from the State at large. 
If more than one reci*ivo the same number of votcH in a district, it being the highest, no 
Presidential vote Hhall be counteil for the district. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 93 

President, for conferring upon Congress the power to conduct 
such election, when it choose to do so, to alter the division of 
the State into districts, and to establish tribunals for the 
decision of such election as may be contested.^ 

The resolution was not brought np for consideration by the 
Senate until the following January, when it called out an im- 
portant debate, Senators Morton and Anthony delivering long 
and valuable speeches. Senator Morton's address especially 
was a clear exposition of the working of the electoral system 
up to that date.^ It is worthy of note that he accurately fore- 
cast the contested election of 1876. In opening his remarks 
he declared it as his conviction that '' no more important ques- 
tion can be considered by the Senate at this session of Con- 
gress, for, in my opinion, great dangers impend, owing to the 
imperfection of the present system of electing the President 
and Vice-President^." In support of the district system, he 
quoted the figures from the report of the committee, which 
showed that in the eight Presidential elections between the 
years 1844 and 1872 four of the Presidents had received less 
than a majority of the popular vote,^ while during the same time 
the district system, as shown by the Congressional elections, 
approached more nearly by one-third to the whole popular vote 
than the election by the present method. Two votes by the 
proposed system were to be given by the State at large, in 
order that "the autonomy and i)ower of the small States" 
might be preserved. 

In the meantime a very similar resolution was reported to 
the House by the Committee on Elections, which awakened 
considerable interest,* but neither in the House or the Senate 
was the proposition brought to a vote, the general opinion being 
that the greatest danger lay in tlie matter of the electoral 
count. Senator Morton introduced the same amendment in the 
next Congress, but no action was taken beyond its reference.® 

 Post, pars, 53, 54. 

"Cong. Record, Forty -third Congress, second session, pp. 027-634. Senator Anthony 
declared "all the machinery of the existing system is absurd." Senators Thurman and 
Coukling also spoke agreeing that some change was necessary. 

* See also report of the committee as given on previoas page. 

4 Polk, 1844, 50 per cent; Taylor, 1848, 47 per cent; Buchanan 1856, 45 percent; Lincoln, 
1860, 40 per cent. Ibid., also report of committee. For a table showing the difference 
oetween the popular and electoral vote in all elections from 1832 to 1876, see House Re- 
ports, Forty-sixth Congress, tlrst session, Vol. ii. No. 347. 

*App., No 1386. In lieu of the section conferring upon Congress power to create tri- 
bunals to decide contested elections, was one making it the duty of the Supremo Court. 
Post, pars. 54, 70. It was recommitted and again rejwrted with Mr. Smith's substitute. 
No. 1393, post, par. 45. 

* App., No. 1431. For criticism of the district system, see post, par. 51. 



94 AMERICAN HISTORICAL ASSOCIATION. 

45. ELECTION OF PRESIDENT BY A DIRECT VOTE BY STATES. 

In the Continental Congress and its successor, the Congress 
of the Confederation, all officers had been chosen by a vote by 
States. A similar principle was recognized in the Constitu- 
tion, which provided in the electoral system that each State 
should have two votes, corresponding to the number of Sena- 
tors, besides one for ea<ih Eepresentative in Congress; and in 
case of no choice by the electors, the election should devolve 
upon the House of Representatives,- the vote being taken by 
States, "the representation from each State having one vote.''* 
Thirty-five propositions retaining this federative principle of 
the Constitution proposed that the President and Vice-Presi- 
dent should be elected by a direct vote of the qualified voters, 
given by States. While doing away with the electoral col- 
leges, the electoral ratio or votes of the States were to be 
retained. Such propositions were brought forward at two 
different periods, the first between the years 1826 and 1848, the 
second since 1875. In their general characteristics they fall 
naturally into two groups, corresponding very nearly to the 
periods just mentioned; the one providing that the persons 
receiving the greatest number of votes in a State should be 
declared to have received the entire vote of the State;* the 
other that the Presidential vote of each State should be divided 
among the candidates in proportion to the jwpular vote received 
by them in the State. 

The earliest of the resolutions of the first group was pre- 
sented by Mr. Haynes of Georgia, in 1826.' Eleven similar 
resolutions were proposed at different times within the next 
twenty years, the greater number, indeed, within the next ten.* 
Three of these resolutions, from th^ general assembly of Geor- 
gia and the legislatures of Alabama and Missouri, are interest- 
ing as showing with what jealous care the sovereignty and 
equality of the State was guarded.* The general assembly of 
Georgia declared their concurrence with the legislature of 
Missouri^ in the proposal to amend the Constitution so as to 



> Constitution, art 2, sec. 1, cIh. 2 and 3, as originally adopted, retained in article xii of 
the amendments. 

* A number of votes equal to tlie number of StMuitors and Keprescntiitivos to which tlio 
State was entitled in Congress. 

■App., No. 559. 

* App., No8. 560, 583, 594-, 600, 609, 641. 661, 663, 083, 735, 741. 
•App., Nos.583,600. 

* Ante, par. 42, App., No. 001a. 



PKOPOSED AMENDMENTS TO THE CONSTITUTION. 95 

provide a uuiform mode of electiog Preisldent and Vice-Presi- 
dent by the direct vote of the people, "provided such altera- 
tions can be so made that the sovereignty of the States be not 
invaded and the weight of the States and the present basis of 
representation be retained according to existing conditions of 
the Oonstitation." ^ The Alabama and Missouri resolutions 
were very similar.^ 

The only essential difference between the amendments of 
this group was the provision for the method to be employed 
for the choice of President in case no one received a ms^ority 
of the vote of all the States.^ 

This amendment, so frequently urged at this time, was not 
again presented until 1878, when it was revived by Mr. Samp- 
son of Iowa/ The same proposition has been introduced once 
since, in 1886.* 

The amendments of the second group, providing for the 
division of the electoral or Presidential vote of the State, were 
for the most part introduced since 1876. They were preceded 
by two isolated propositions which foreshadowed the terms of 
the amendment of the later period. The first of these was 
presented by ^Ir. Lawrence of New York, in 1848.** His plan 
proj)osed that the number of votes given to each person shall 
be estimated as such a i)roportion of the vote of the State' as 
the said vote shall bear to the whole number of votes given 
within the State for President. *'Any person receiving a 
majority of all the votes so estimated, given in all the States 
for President, shall be President." By this method it is seen 
that the relative weight of each State is retained, and yet 
provision is made that the minority vote given in each State 
shall be counted. To Mr. Lawrence should be given the credit 
of having been the first to suggest in Congress a system of 
proi)ortional voting. 



' Similar resolutions were introduced iu tlio legislature of Maryland, Niles' Register, 
XXXVII, 428. The legislature of Vennoiit nonconcurred with the Georgia resolution, Am. 
An. Reg., vi, 322. The Georgia resolutions further declared it desirable to amend. so that 
in no case shall the election devolve apon the llouse of Representatives if provision is 
made for securing to the States an equal vote in such decisions in the last resort. App., 
No. 600 

* App., Kofl. 583, 594a. The legislatures of Connecticut and Vermont disapproved of the 
Missouri amendment. Massachusetts Ari'hives, Nos. ''V'l *V''' 

*Post, par. 50, especially Mr. McComa» s amendment, No. 661. 

* App., No. 1467, in case of a tie in a State the vote to be equally divided. 
•App., No. 1672. 

•App., No. 754. 

' Which was to be equal to the number of Senators and Representatives of said State in 
Congress. 



96 AMERICAN HISTORICAL ASSOCIATION. 

Over twenty years later Mr. Ashley of Ohio, who was very 
zealous in his attempts to secure a new method of electing the 
President/ renewed the suggestion of a proportional division 
of the vote of each State among the different parties, but, curi- 
ously enough, his plan retained the colleges of electors.* With 
the renewal of the discussion of the desirability of changing 
the method of electing the President in 1874-76, the first of 
twenty resolutions suggesting anew the adoption of a system 
of a proportional division of the electoral vote of a State 
among the various candidates was presented.^ It was intro- 
duced by Mr. Smith of New York as substitute for the amend- 
ment reported by the House Committee on Elections, which 
proposed the district system.* Mr. Smith's substitute was 
designed to meet the objection urged against a i)opular vote 
regardless of State lines, for it still proposed to leave to the 
States their weight of influence by an ingenious but compli- 
cated system of computing the votes.* This plan, Mr. Smith 
said in proposing it, he framed ^^for the purpose of obviating 
the danger and difficulty of a large accumulation of contested- 
election cases in the electoral districts proposed by the plan 
of the Committee on Elections, and to prevent the gerryman- 
dering of States by partisan majorities in the construction 
of election districts, and to dispense with the cumbersome 
machinery of electoral districts, while preserving the autonomy 
of the States in the election of President and Vice-President.* 

The next resolutions were suggested by the contested elec- 
tion of 1876. They were presented by Messrs. Maish, Springer, 



1 For othor methods proposed by him, see ante, par. 42. From the variety of proposi- 
tions ho introduce<l he was known as " the suggesting member." 

*Tho voters wore to vote by ballot for President and Vice-Preeident. Then the legiso 
lature of eacli State was to divide the total number of votes oast by the number of Sena- 
tors and Kepresentativeb to which such State was entitled ui Congress, and the product 
shall bo the ratio of one elector. The legislature was then to appoint the electors, '*tak- 
ing care to secure to each candidate voted for in the State au equitable representation in 
the electoral college, as indicated by the number of votes returned for each candidate.' 
The electors thus api>ointed were to vote for one of the candidates named for President 
and Vice-President, resi>ectively, by the voters at the general election. App. No. 1283f. 

s App., Nob. 1386, 1437, 1438, 1439, 1441, 1475, 1493. 15U3, 1508, 1537. 1538, 1542, 1569, 1589, 1624, 
1639, 1640, 1697, 1705, 1735. It was generally supiMised to be an entirely new plan. 

* Ante, par. 44. App., No. 1386. 

*It required that the aggregate vote for President in each Stiito shall be divided by the 
number of Kepresentatives apportioue<l to such Stat« in the Uouso of Representatives 
and twice the result or quotient shall bo added to the vote of the candidate having the 
highest number of the popular vote in such State for President as, and for the State vote 
for, such candidate. The pcrHon hnviug the highest number of votes in all the States, 
including the i)opular vote and the State vote, shall be Preside iit. 

«Cong. Record, Forty-third ('ongress, necond sesaion. pj). 748-749. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 97 

and Oravens, in 1877, and were based on the same general prin- 
ciple as the preceding proposition, but differed as to the method 
employed in computing the vote. Mr. Maish's plan provided 
that the electoral vote of each State should be distributed 
among the candidates in the proportion the electoral ratio 
shall bear to the popular vote of each candidate.^ The elect- 
oral ratio was the quotient obtained by dividing the whole 
number of votes returned by the whole number of the State's 
electoral vote. Mr. Maish's resolution has been introduced 
four times since, twice by himself and twice by Mr. Beltz- 
hoover, also from Pennsylvania.^ 

Mr. Springer's resolution proposed a like distribution among 
the candidates of the electoral vote of the State, tlie candidate 
having the largest fraction should have the odd Presidential 
votes, if any remain, each State should be entitled to as many 
votes as it had Senators and Eepresentatives in Congress, 
except that States having but one member of the House of 
Eepresentatives should be entitled to but two votes, and States 
having but two members of the House of Representatives 
should be entitled to but three votes in the election of President 
and Vice-President.^ Mr. Springer has introduced a resolution 
proposing this amendment in every Congress since 1882, the 
text of the proposed amendment being similar to the one first 
submitted by him, save the provision for reducing the number 
of electoral votes of the small States does not appear.* 

Mr. Cravens's device for ascertaining the Presidential vote to 
which each person voted for in any State was entitled, was to 
multiply the whole number of votes of the qualified electors in 
the State for such person by the number of Presidential votes 
to which the State was entitled and divide the sum so obtained 
by the aggregate votes of the qualified electors of the State 
for all persons for President, using for that purpose not exceed- 
ing three decimal fractions.^ Resolutions proposing a similar 
method of computing the votes have been introduced eight 
times since.® Two of these were reported favorably by the 

> App., No. 1437. 

>App., Ko8. 1438, 1503, 1542, 1705; also introduced in the Fifty-first Congress by Mr. 
Haisb. 
s App., No. 1439. 

* App., Nos. 1509. 1624. 1640. 1735. No. 1569 contains this provision ; the others do not. 

* The fractional part of a Presidential rote remaining shall be added to the Presidential 
vote of the person receiving the highest number of votes in the State. App., No. 1441. 

«> App., Nos. 1475, 1493, 1508, 1537, 1538.-1589, 1639, 1697. All applied the foregoing provi- 
sions tu the election of Vlce-PreAideut. 

H. Doc. 353, pt 2 7 



98 AMERICAN HISTORICAL ASSOCIATION. 

Select Committee of the Hoase of Representatives on the 
Election of President and Vice-President in 1878, and again in 
1880.^ Since 1881 Mr. Browne of Indiana has proposed this 
amendment in each Congress. All of these amendments were 
presented in the House, but none were ever brought to a vote. 
Some provided that the person having the highest number of 
votes should be President;^ others that if no person had a 
majority the joint convention of the Senate and House should 
choose the President from the two highest on the list.^ 

Doubtless there is too much mathematics in some of these 
plans to make them popular,^ but the simpler method of com- 
puting the vote proposed by Messrs. Maish and Springer might 
easily be understood. Some such application of the system of 
proportional re])reseutation to the election of President and 
Vice-President seems not only practicable, but peculiarly just 
and equitable, inasmuch as it not only preserves the weight of 
each State, but also gives a proportional part of the electoral 
vote to the minority candidate in each State.^ 

46. ELECTION FROM CANDIDATES DESIGNATED IJY THE STATES. 

Previous to the campaign preparatory to the Presidential 
election of 1833, the candidates for President had been nomi- 
nated either by a caucus composed of the members of one party 
in Congress, or by the legislatures of the States, or even by 
certain counties in a State. Such nominations were far from 
carrying the weight possessed by the modern convention — 
the voice of a powerful party organization. 

The practice of nominating by party convention was first 
inaugurated in the campaign for the election of President in 
1832. In 1830 the first political national convention of dele- 
gates representing the people was held by the Anti-Masonic 
party.^ The following year the same party inaugurated the 
practice of holding a national nominating convention, which 



^ App., Noe. 1476, 1508. Able and iutereHtins; reportH: 1878, H. Rep., Forty-fifth Con- 
fO^Bs, second BCHsion, Vol. iv, No. 819. It conUiiun a table applying the proposed system 
to the vote given in 1876 for President. The minority re]>ort appealed to the spirit of 
State rights to defeat the measure, fearing interference by^ the Federal Government in 
the States on the ground of intimidation. 1880, H. Kep., Forty-sixth Congress, second 
session, Vol. ii, No. 347. 

' As App., Nos. 1475. 1493, 1508. These made provisions for a tie to be settled as at 
presents 

s As App., Nos. 1441, 1538. 

* The method proposed by the Cravens plan is donbtlrss the moHt accurate, but coire- 
spondingl}' complicated. 

*FoT further discussion of proportional ]il;in. soc ]h>M, par. 51, and note. 

^Stanwood, p. 104-100. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 99 

practice was immediately adopted by the National Eepublican 
and the Democratic parties.* Thus was established our present 
system of nominating by party conventions. 

However, there was one member of Congress at least who 
did not look with favor upon this method of nomination. Mr. 
Underwood of Kentucky, in 1838, and again in 1842, in connec- 
tion with other amendments introduced by him, proposed a new 
method for the nomination and election of President and Yice- 
President.'^ It provided that the State legislatures, by a joint 
vote of each house, should, in behalf of their respective States, 
nominate candidates for the Presidency and Vice-Presidency, 
respectively. The governors of the States having reported 
the nominations to the President, he should publish the same 
by proclamation. The citizens should vote directly for one per- 
son so nominated for each oflUce. The results of the votes given 
in the respective States should be forwarded to the President. 
Congress should canvass the votes. The person receiving a 
majority of all the votes should be declared elected. If no per- 
son received a majority, then both Houses of Congress in joint 
session should choose a President or Vice-President from 
among those nominated for that office. The votes should be 
given viva voce, each member having one vote, and a majority 
of the votes given should decide.^ 

The only other resolution which proposed the nomination of 
candidates by the States was introduced by Senator Davis, 
also of Kentucky, in 1862, and on three subsequent occasions. 
These proposed amendments are perhaps as curious as any 
which have been presented during the century. By the terms of 
the original resolution any State might, within thirty days be- 
fore the time for the election of President, in any mode adopted 
by the State, nominate to Congress one candidate; and from 
the candidates so nominated by the States the two Houses of 
Congress, meeting together as a convention, should choose one 
as President of the United States. The unanimous vote of all 
members elected to both Houses was necessary for the election 
of the President. This was to be secured by the dropping of 
the candidates having the least number of votes after a stated 
time had been spent in balloting. In the same manner the 



> Ibid. The Democratic conveotion wBpS called to decide upon a candidate for Vice- 
Prenident, as the party waa united for the reelection of Jackson. 

«App., No8. 679, 724. 

'In case a State should fall to nominate in the required manner or report the nomi 
nation made or the votes given in the manner and time required, the election shall be 
made without regard to such failure, and shall be valid. 



100 AMERICAN HISTORICAL ASSOCIATION. 

Yice-Pre«ideut was to be elected from the remainiug candi- 
dates. In case of do choice by the convention, the decision 
was to be referred to the Supreme Court. ^ The same proposi- 
tion was again made by Mr. Davis early in the following year.^ 
In December of 1864 Mr. Davis presented a long series of 
amendments which he desired should be submitted to a con- 
vention which should be called for the purpose of revising the 
Constitution. One of these proposed the same method of 
choice, changed in several particulars.^ The first section of 
the resolution contained in a modified form the suggestion he 
had made earlier in this same year for the consolidation of 
certain of the Eastern States into three States <^for Federal 
and national purposes only."^ Provision was made that the 
President and Vice-President were to be taken alternately 
from the free and the slave States; that each State was to 
select one of its own citizens for either the Presidency or the 
Vice-Presidency, according as it was free or slave and as the 
free or slave States were entitled to the ofiice. From the can- 
didates so nominated the Supreme Court was to choose the 
President and Vice-President. In 1867 Mr. Davis proposed 
this method of nomination by the States for the last time, in a 
resolution similar to the one originally introduced by him 
nearly five years before, save that only a majority of the votes 
of the whole number of members of both Houses was by this 
proposition necessary to elect.^ 

47. ELECTION OF PKESIDENT BY LOT. 

Among the many curious amendments proposed for the elec- 
tion of President, perhaps the most unique are three sugges- 
tions for the choice of the Executive by lot.® The first of these 
was introduced by Mr. Hillhouse, a Federalist Senator from 
Connecticut, in 1808, as one of the remarkable series of amend- 
ments presented by him at this time, for the preservation of 
the country from the evils engendered by the growth of parties 



•A pp., No. 978. 

»App.,No.980. 

» App., No8. I039b-d. 

*See post, par. 122., App., Nos. 987, 989. The earlier proposition had dealt only with 
New England. This proposed that Maine, New Hampshire, and Vermont should form 
one State; Massachusetts, Connecticut, and Rhode Island another, and Maryland, 
Delaware, and the Eastern Shore of Virginia a third. 

«App.,No.l207. 

' The plan for selecting electors by lot from the National Legislature was suggested by 
Wilson in the Federal Convention. Elliot's Debates, Y, 362. Ant«, par. 37, p. 75, not« 8. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 101 

and party 8i)irit.^ This amendment provided tbat the Senators 
shoald hold their office for three years, and one-third retire 
annually. From the retiring Senators, one should be chosen 
by lot as President for the ensuing year, in the following man- 
ner: Each of these Senators shoald, in alphabetical order, 
draw a ball out of the box, one of which was colored; the 
Senatoi^drawing the colored ball shoald be President.' In his 
speech in support of these amendments, Senator Hillhouse 
declared that his experience in Congress for seventeen years 
had convinced him that some such change as he proposed was 
necessary for the perpetuity of the Government. '<I should 
not have proposed this mode," said he, "if any other could 
have been devised which would not convulse the whole body 
politic, set wide open the door to intrigue and cabal, and bring 
upon the nation incalculable evils, evils already felt, and grow- 
ing more and more serious."^ No action was taken by Congress 
upon these propositions,^ but some twenty years later Hillhouse 
revived an agitation in favor of his plan outside of Congress, 
receiving letters favoring it from Chief Justice Marshall and 
William H. Crawford, but John Qnincy Adams probably re- 
flected the prevailing opinion when he wrote in his diary "a 
serious discussion of his amendments would be ridiculous."^ 

The second, presented by Mr. Vinton of Ohio, in 1844 
and again in 1846, arranged that each State should by popu- 
lar vote elect from its citizens a candidate for the Presidency. 
From these candidates one was to be chosen by lot.^ The 
amusing details of this suggestion were that as many balls as 
there were Senators and Eepresentatives from each State, 
inscribed with the name of the State, should be placed in a box. 
One ball should be drawn from the box and the candidate 
elected by the State, the name of which should be upon the 
ball drawn out, should be President. 



> For other propositioiiB, see ante, pars. 26, 30 ; post, pars. 56, 57, 59, 60. 

«App., No.302. 

'Speech in full in American Refcister for 1800, Chap, ii (p. 15). He said that this 
method was snggested from the experience of "some of the repablice of Stvitserland," 
Berne in particular. Ibid., pp. 17-18. He cited twelve reasons in favor of its adoption. 

4 John Adams wrote a critioism on these amendments. See Works, Vol. vi., pp. 523 
et seq. It would seem he was dissuaded by his son f^om publishing it. See Memoir of 
John Quincy Adams, Vol. vii, pp. 22&-226. For connection of Hillhouse with the schemes 
of a Northern Confederacy, ibid., p. 141. See also post, par. 60. 

* Marshall wrote : "We shall no longer be under the banners of particular men. Strife 
will no longer efifect its object; neither tlie i>eople at large uor the councils of the nation 
wiU be agitated by the all-disturbing question, Who shall be President .' " Harper's 
Weekly, April 28, 1877 ; O'Neil, p. 258. Adams's diary, as above. 

• App., Kos. 740, 744. 



102 AMERICAN HISTORICAL ASSOCIATION. 

The last, the most novel and complicated of the three, was 
reserved for Senator Powell of Kentucky to bring forward in 
1864.' This scheme, containing eleven sections, still retained 
the electoral college, but it rednced considerably its number by 
providing that Congress should apportion among the several 
States the electors according to the following ratio of popula- 
tion in Federal numbers: One elector to each State having 
less than a million, two to each State having one, but less than 
two million, and so on to seven to each State having a popula- 
tion of eight millions. Each State having but one elector 
should be an electoral district, and each of the other States 
should be divided by Congress into districts equal to the num- 
ber of its electors, each district to elect one elector. The 
electors should convene at the seat of government and form 
an electoral college on the first Monday of February, over 
which the Chief Justice of the United States should preside. 
The electors should then be distributed alphabetically into six 
classes as nearly equal as possible. Each class should choose 
an elector from the class next succeeding it, except class six, 
which should choose from class one. From the six so chosen 
two should be designated by lot, and from these two the col- 
lege should choose one to be President, the other to be Vice- 
President. If the college should fail, except from exterior 
violence or intimidation, to make an election within twenty- 
four hours from the time it was formed, it should be dissolved, 
and a new election ordered, and the college should convene 
and proceed as before directed. Should there be no election 
by an electoral college before the 1st day of June, the Senate 
of the United States should form itself into an electoral col- 
lege, and proceed according as was directed for the electoral 
college, within twenty-four hours. If they should fail to elect 
the office should devolve upon such officer of the Government 
as Congress should have theretofore directed. Then followed 
four other sections relating to further details of the system, 
one of which stipulated that every elector before entering uptm 
the duties of his office should take an oath to support the Con- 
stitution, and declare that he had not and would not pledge 
his vote as an elector in favor of any person, or toward aiding 
any political party. 



I App., No. 1026. The plan of Judge NichoUon of Kentucky. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 103 

48. ELECTION OF PRESIDENT FROM PRESIDENTIAL SECTIONS. 

The desire that a President should be selected only out of 
a previously designated group of men is akin to the design to 
compel the choice of a man resident in a designated section. 
Two amendments have been prox>osed which divide the country 
into Presidential sections.* The first was introduced in 1822 
by Mr. Montgomery of Kentucky; it did not change the 
method of the election, but provided for the creation of 
Presidential sections. The President was to be elected from 
each of four sections in rotation.^ The New England States 
and New York were to constitute one section. The remainder 
of the Middle States, with Maryland and Virginia, another; 
the Southern States another, and Kentucky, Ohio, Indiana, 
Illinois, and Missouri another. There bein g twenty-four States 
in the Union at this time, it was provided that upon the 
admission of new States they should be incorporated within 
the section upon which they bordered. The number of the 
sections were to be determined by a "lottery'' conducted 
in the presence of Congress. Provision was made for the 
division of any section when its population was shown by the 
census to be double that of the section containing the lowest 
represented number. The reception of the resolution may be 
inferred from the remark of its author: "However laughable 
it might appear to some gentlemen, he considered it a very 
serious matter." 

The cause of the amendment was doubtless the jealousy 
awakened in the Middle States and New England, and still 
more in the West, by the fact that, with the exception of John 
Adams, all the Presidents up to this time had come from 
Virginia.^ 

The other resolution was introduced nearly forty years later, 
in February, 1861, shortly before the outbreak of the civil war. 
Entirely different motives prompted its introduction. It was 
an attempt by a Northern Democrat to make such a change in 
the Constitution that the Southern States would refrain from 
going out of the Union. Calhoun, in his speech of 1850 on the 
compromise, had made a somewhat similar proposition.^ It 



I See ante, par. 34, for Mr. Southard's plan for an executive oouncil. 

» App., No. 509. 

'The amendment proposed by Andrew Johnson in 1860 for the election of the President 
and Vice-President by district pvovided that the President and Vice-President should 
alternately be chosen from the North and South. Ante, p. 91. 

« Works, 1,893-890. 



104 AMERICAN HISTORICAL ASSOCIATION. 

was now put forward by a Norther u mau, Mr. Yallaudigham of 
Ohio.* The four sections contemplated by the amendment were 
to be known, respectively, as the North, the West, the Pacific, 
and the Sonth. 

Unlike the proposition of 1822, this amendment proposed 
changing the method of electing the President. It provided 
that two of the electors for the State at large should be ap- 
pointed by each State as the legislature thereof should direct 
The others should be chosen in the respective Congressional 
districts of the State. A majority of all the electors in each of 
the four sections should be necessary for the choice of Presi- 
dent and Vice-President; and the concurrence of a majority of 
the States of each section should be necessary for the choice of 
President by the House of Kepresentatives, and of the Senators 
from each section for the choice of Vice-President, whenever 
the right of choice should devolve upon either of them. 

Further articles provided for the term of the President and 
for a special election in the case of a failure by the House and 
Senate to elect when the choice devolved upon them. 

The adoption of this amendment would have enabled the 
Southern States to have prevented the election of any man to 
the Presidency who was openly hostile to the system of slavery. 
In addition, this amendment in effect gave the South a nega- 
tive on all legislation hostile to its interests, for it provided 
that on the demand of one-third of the Senators of any one 
section, on any bill, order, resolution, or vote to which the con- 
currence of the House was necessary the vote should be held 
by sections and a majority of the Senators from each section 
voting should be necessary to its passage. It shared the fate 
of the other compromise measures introduced in the session 
of 1860-^1. 

49. ELECTION OF PRESIDENT AND VICE-PRESIDENT BY THE VOTERS 

AS CONGRESS SHALL DIRECT. 

In addition to the amendments proposing to extend the 
power of the Federal Government to control and regulate the 
election of President and Vice-President, which are discussed 
in another paragraph, there have been three proposed amend- 
ments presented, conferring upon Congress the power to pre- 
scribe the method of electing the President.' The first of these 
was introduced in 1869 by Mr. Buckalew of Pennsylvania. It 



> App., Nos. 90U903. Seo post, 49, 56, 86, 107. ' See post, par. 63. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 105 

provided that "Confess shall have power to prescribe the 
manner in which the electors shall be chosen by the people." 
This amendment, as was said in the debate, would have enabled 
Congress to prescribe the single district system or any other 
improved method as seemed best at any given time. This 
resolution, after being presented several times, was finally 
passed by the Senate, in connection with the Honse suffrage 
amendment.^ The House refased to concur in the amendment, 
and the Senate, after receding from this article, failed to give the 
suffrage amendment the necessary two-thirds. The fifteenth 
amendment passed later without this article being incorporated 
in it.* 

Twice since, in 1872 and in 1888, a very similar proposition, 
save that the vote should be given directly, without the inter- 
vention of electors, has been presented to Congress, the first 
time by General Banks, the last by Senator Cockrell.^ 

50. ELECTION OF PKESIDENT AND VICE-PRESIDENT IN CASE OF NO 

CHOICE AT THE FIXIST ELECTION. 

The greater number of the proposed amendments relating 
to the method of the election of President and Vice-President 
made provision for the method to be followed in case of no 
choice at the first election. The variety of the expedients pro- 
posed to effect an ultimate choice is only exceeded by the 
methods suggested for the primary election of the chief execu- 
tive officers. Previous to the early " twenties" no amendment 
appears proposing any change in the clause of the twelfth 
amendment,'^ which provides that in case of no choice for Presi- 
dent or Vice-President by the electors the election of the former 
shall be made by the House of Representatives, and of the 
latter by the Senate.* 



I App., Nos. 1287, 1308. See post, par. 131. 

*Thi8 amendment was first proposed as an additional article to the Senate safArafce 
amendment, later withdrawn and presented as a separate amendment, Anally passed by the 
Senate as an additional article of the House suffirage amendment, and reconsidered as 
recorded above. 

3 App., Nos. 1356. 1715. Mr. Banks's proposition provided that the President and Vice- 
President should be "chosen by the electors qualified to vote in the election of Kepresenta- 
tives to Congress," " in such manner and und6r such regulations as Congress may by law 
direct;" Mr. Cookreirs, for a direct vote "in such manner as Congress shall provide by 
law." 

* Except Hillhonse's proposition of the choice of President by lot. Ante, par. 47. 

* The twelfth amendment reduced the number of names submitted to the Honse ftrom 
Ave to three. Compare art. 2, sec. 1, cl. 3, with the twelfth amendment. The Federalists 
had opposed this chi^ge made by the twelfth amendment as reducing the intluence of the 
small States. Ante^ par. 38, p. 79, note 4. 



106 AMERICAN HISTOBICAL ASSOCIATION. 

lu 1823, as if ia expectation of trouble in the next election, 
several amendments to alter this provision were introduced. 
The failure of the electors to choose a President in 1824, and 
the subsequent choice of Adams by the House, called forth a 
large number of resolutions prox>osing a variety of methods to 
diminish the probability of the election devolving upon the 
House of Bepresentatives, some even stipulating that in no 
case should the choice be left to the House.' Naturally the 
friends of Jackson were the most zealous in urging this propo- 
sition,^ and with some success, for in 1825 the House, after a 
six weeks' debate, agreed to a resolution to take away from the 
two Houses the power of participating in eventual elections,^ 
but their committee were unable to agree upon ^^any specific 
plan,'' and were discharged.^ 

Although Congress was unable to agree upon any substi- 
tute for this provision of the Constitution, various expedients 
have been devised by individual members. These for con- 
venience of treatment are classified into eleven groups, begin- 
ning with those proposing the least change, and proceeding to 
the most radical. 

(1) The msyority of the amendments in regard to the elec- 
tion of President and Vice-President did not propose to 
deprive Congress of the contingent power to elect, but some 
have aaggested changes in the method and procedure of the 

* As the resolatlons from the legislatores of the following States : Tennessee, App., No. 
58lB (1827) ; Alabama. Ko. 583 (1828) ; Georgia, Ko. 600 (1830) ; Maine, No. 058a (1830) ; 
leii^slature of Vermont nonconcurred. Am. An. Reg., p. 322. Ohio, No. 655a (1830). 

* See Sumner's Andrew Jackson, p. 106, for description of their hostility to President 
Adams. For Adams's views as to the propriety of election devolving upon the House, 
nee his Memoirs, VoL vii, pp. 301-303. For Jackson's position, see ante, par. 43. Van 
Buren said, ** There was no point on which the people of the United States were more 
perfectly united than upon the propriety, not to say indisputable necessity, of taking the 
election of President from the House of Kepresentatives." Quoted by O'Neil, p. 253. 
Madison wrote, in 1823: " An amendment of the Constitution on this i>oint is Justly called 
for by all its considerate and best friends." Works, Vol, ni, p. 833. 

* By a vote of 138 to 52. (This amendment was called for by the legislature of Oeorgia in 
1820. App., No. 577a. In 1836 the legislatnreH of Ohio and Maine recommended this re- 
striction. App. Nos. 855a, 658a.) At the same time a declaratory resolution in favor of 
the district system of election of President directly was defeat^il. Ante, par. 43. 

^This failure showed that however generally it wan agreed that the election ought not 
to devolve upon Congress, it was impossible to secure a sufficient number to agree upon any 
other plan. An article in Niles' Kegistcr referring to the action of the House, as above, said 
that the Southern States wi're opposed to "a further extension of the popular principle,*' 
while the greater States would not allow '*a further extension of the Federal principle." 
*' The large States wlU not give up one jot or tittle of the power that they have as to first 
choice of a President; nor will the small States abate their influence when the vote is to be 
taken by States." " We despair of a change * * * because of the throe parties to the 
question, to wit, the large States whether holding slaves or not, the nonslaTe^holding 
States and the slave-holding States, and the small States." Vol. zzx, p. 283. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 107 

respective Hoases in the event of the election devolving upon 
it. One snch, introduced in 1825, provided in case no one 
received one-third of the whole number of votes given by the 
electors, the House should choose the President under such 
rules as they might agree upon.* Another, like that advocated 
by Mr. Phelps of Connecticut, in 1826, proposed raising the 
number of candidates again to five, as originally provided in 
the Constitution, when the election fell to the House. If no 
person received a majority after the second ballot, from the 
two having the highest number of votes the Speaker should 
choose one by lot.^ Several, like the amendment reported by 
the Senate Select Committee on Elections in 1824, stipulated, 
in place of the vote being taken by States, that each Bepre- 
sentative should have one vote, and after the first ballot a 
plurality should elect.^ 

Mr. Vallandigham's proposition, by which the country was 
divided into sections, provided in case the election devolved 
upon the House, the concurrence of a majority of States of 
each section should be necessary for a choice/ 

(2) Another variation would have continued to give to Con- 
gress the duty of making a choice if there was no election, but 
a choice by joint ballot. Senator Dickerson repeatedly intro- 
duced an amendment which provided that in case no person 
received a majority of the votes of the electoral college, then 
from the highest number not exc«>eding three on the list of 
those voted for as President, the Senate and House in joint 
meeting should immediately, by ballot, choose the President. 
A majority of the votes of all members present should be neces- 
sary to a choice on the first ballot, after which a plurality of 
votes should elect.^ In the amendments introduced by Mr. 
Underwood of Kentucky, in 1838 and 1842, proposing the nom- 
ination of candidates by the Stat« legislatures, and the election 
by a direct popular vote, provision was made, in case no person 
received a majority, for a joint convention of both Houses of 
Congress to elect the President or Vice-President by a viva 
voce vote from among those nominated for the ofiice, a majority 
of votes present to decide.*^ A similar method of deciding 



iApp.,No.640. 

* App., No. 561. 
>App., No. 534. 

* App., No. 908. See ante, par. 48. 

' Ante, par. 39. Madison, in 1823, wrote that of "the different remedies proposed'* ho 
liked the Joint vote of the two Houses best. Works, III, 334. 
 App.» Nos. 679, 724. Ante, par. 46. 



108 AMERICAN HISTORICAL ASSOCIATION. 

the election, in case no person receiveil a majority of the votes 
given directly for President and Vice-President, has been 
frequently saggested, especially in recent years. In most 
instances a majority vote of the joint convention was to 
decide, but some required a two-thirds voteJ 

(3) A favorite device for avoiding recourse to Congress was 
the suggestion of a second election by the original electors. 
January 10, 1823, Senator John Taylor of Virginia proposed such 
an amendment, but the electors should vote for one of the two 
as President who should have received the greatest number of 
electoral votes at the first election. In case of a tie at the 
second election, then it should be the duty of the House of 
Representatives to choose one of them as President.^ This 
amendment was later modified in a new draft, which provided 
that instead of an election by the House, that both Houses of 
Congress in joint convention should select the President. In 
the amendments introduced at this same session of Congress by 
Mr. McDuffie of South Carolina and by Senators Hayne and Van 
Buren, a similar provision was made for a second meeting of 
the electors in case of no choice at the first elections.^ In Mr. 
McDuffie's resolution there was a peculiar provision that made 
it possible for two Presidents to be elected. It provided 
that the Senate and House in joint meeting should canvass 
the vote cast by the electors at their second meeting, and if no 
one had received a majority the joint meeting, each member 
having one vote, should choose a President. "If there be two 
or more persons, each of whom have the highest number of elect- 
oral votes given at the second meeting, each one of the^n shall 
be chosen. If there be only one [)er8on having the highest 
number of electoral votes, less than a majority, one of the per- 
sons who has one of the two highest number of votes shall be 
chosen."* Mr. Droragoole of Virginia in subsequent years 
(1838 and 1845) twice presented an amendment similar to that 
introduced by Senator Taylor.* 

(4) Two amendments presented in the same session of Con- 
gress, in 1826, made provision for a second choice of electoral 
(K)llege8, the persons so chosen should, from the persons having 
the two highest number of votes at the first election, choose 



I As App., Nob. 743, 1078, 1314, U39, 1441, 1569, 1624, 1040, 1735. 

« App., >«o. 517. 

s App., No8. 524. 527, 532. 

* App., No. 524. ante, par. 34. 

•App.,Noa.682,743. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 109 

one, but the vote shoald be taken by States, each State having 
one vote.^ 

(5) In 1824 Mr. Livingston of Lonsiana proposed an amend- 
inenl for the election of President by a direct vote given in 
districts. This amendment provided that the citizens, at the 
same time they gave their vote for President and Vice- 
President, shoald also vote for an elector. In case no person 
was the choice of a majority of the whole number of districts, 
then the electors should assemble in their respective States 
and cast their votes for one of the two persons receiving the 
greatest number of district votes. In case of a tie, the one of 
the two who had the greatest number of votes of the electoral 
districts should be President.^ In 1827, upon the instruction 
of the legislature of Ohio, and again in 1829, Mr. Wright of 
Ohio presented an amendment of a somewhat similar kind. It 
differed in that his resolution contemplated an election by a 
minority of the popular vote of the country, but the voters at 
the same time they voted directly for President and Vice- 
President were also to cast their ballots for electors equal to 
the number of Senators and Bepresentatives to which their 
State was entitled. In case of no person receiving a majority, 
the electors having the greatest number of votes should choose 
the President and Vice-President from the two persons having 
the greatest number of the direct votes. In case of no election 
the choice should devolve on Congress.^ 

(6) Another proposition was for a popular election to follow 
the meeting of the electoral colleges, if tbere was no choice. 
The citizens of each State were to vote directly for one of the 
two highest candidates at the first election. The votes were 
to be taken by States, each State having one vote. This was 
presented by Mr. Hemphill of Pennsylvania, in 1826,* and a 
somewhat similar plan was proposed in the following year.' 

(7) Still another modification of the system of double elec- 
tion is included in an amendment introduced in 1826 by James 
Buchanan, then a member of the House. It provided that in 
case no election should be made by the electors, the States should 
choose the President from the two highest on the list, in such 

> App., No8. 556, 574. 

* App., No. 537. 
>App.,Kos.5d8,G02. 

* App., No. 561. In oase of a tie the choice to be made as the present provisions of the 
Xonstitation direct. 

•* App., No. 580. 



110 AMERICAN HISTORICAL ASSOCIATION. 

iiiauner as the legislature thereof shouJd direct, each State hay- 
ing one vote.^ The only proposition of the whole series which 
left the choice to the legislatures of the States was presented 
by Mr. Stevens of Virginia in this same year. In case of no 
election in the primary colleges, the legislatares of the respec- 
tive States were to choose, by joint ballot, one from the three 
I)ersons having the highest number of electoral votes.* 

(8) A large number of the amendments proposing various 
ways in which a direct vote should be given for President and 
Vice-President contained provisions for a second election con- 
ducted in the same manner as the first, but the candidates 
were to be restricted to the two receiving the largest number 
of votes at the first election. These propositions were pre- 
sented within a few years subsequent to the election of 1824,^ 
but the same plan was revived with the renewal of the intro- 
duction of resolutions for the election of the President by 
popular vote.* 

(9) A modification of the last- mentioned plan, which received 
extended consideration in 1835-^, provided in case of no 
choice by the people at the second election, then the choice 
should be made by the House of Representatives.^ Still others, 
like the amendment urged by Senator Benton, and in later 
years by Andrew Johnson, stipulated that if the two candi- 
dates in the second election received an equal number of votes, 
then the person who had received the greatest number of votes 
in the greatest number of States should be President.^ 

Mr. Morton's proposition, which, like Benton's, proposed 
establishing the district system, made no provision for the case 
of two or more persons receiving an equal number of Presiden- 
tial votes, as the committee which reported the measure were 
unable to agree upon any plan to cover this contingency. That 
provision of the Constitution which confers the choice of the 
President in case of no election by the electors upon the 
House voting by States has frequently been attacked and 
stigmatized as unjust, but the possibility of the choice of a 



1 App., No. 555. A similar provision in Mr. Tucker'8 amendment of 1828, App., Nu. 585. 

» App., No. 673. 

•As the one presentefl by Mr. Dayton of Sonth Carolina, in 1826. App., No. 574. 

« App., Nob. 1104, 1227b, 1283a, 1352, 1368, 1389. 1464, ]505. 1506, 1626, 1668, 1695. See anto, 
par. 42. A second election was to be held only in case no one received a minority of the 
votes. 

«App., Noe.641,654. 

• App., Noe. 552, 601, 632, 765, 770, 813, 1240. Ante, par. 43. f| 



PROPOSED AMENDMENTS TO THE CONSTITUTION. Ill 

'* minority President" has never been more forcibly presented 
than by Mr. Morton, who showed that under the apportionment 
in force at that time (1875) it was possible for forty-five mem- 
bers of the House of Representatives to elect a President 
against the wishes of the remaining two hundred and forty- 
seven members.^ 

(10) Another favorite plan, in order that the choice might in 
no instance devolve upon Congress, made provision for suc- 
cessive elections until some one should be elected. This was 
first proposed in the thirties, but has frequently been urged 
since.^ 

(11) Several of the proposed plans did away with the neces- 
sity of a second election by providing that a plurality of the 
electoral or popular vote, as the case might be, should elect, 
and the election was only to devolve upon Congress in the very 
remote case of a tie.^ 

51. DISCUSSION OF SCHEMES FOR PRESIDENTIAL ELECTION. 

All the prox)osed amendments affecting the election of Presi- 
dent and Vice-President have now been considered.* It may 
be well, however, to review some of the more important of 
them. 

Although at the time of the adoption of the Constitution 
the electoral system excited little opposition, yet at no con- 
siderable interval since . has it failed to be the object of 
attack. First it was early found necessary to perfect the 
system in some of the minor details by the adoption of the 
twelfth amendment. We have already shown how the sys- 
tem has utterly belied the expectation of its framers, for the 
electoral college, instead of exercising its own unfettered 

' App., No. 1893, ante, par. 44. Record, p. 631. A t that time forty-five members would 
control the votes of nineteen States. "Nevada with 42,000 population would havo an 
equal vote with New York, having a population one hundred and four times as great." 
As at present constituted sixty -six members, representing twenty-three States, could 
elect the President in opposition to the will of the remaining two hundred and ninety -one 
members. Such a combination while possible is of course not probable. 

'By Mr. McComas of Virginia, in 1836. App., No. 661. In the seventies by Messrs. 
Wnght and Riddle. App., Nos. 1391, 1420, 1464. 

* As Nos. 554, 1058; and the following : Four provided for the decision of the tie for the 
President by the House, for the Vice-President by tlie Senate, each mem1)er to have one 
vote. App., Nos. 1408, 1420, 1443, 1447. Two that the tie for either office be decided by 
the House. App., Nos. 1359, 1367, ante, par. 42. 

*The following resolutions to amend the Constitution in regard to the election of 
Preaident were introduced, but it has been impossible to classify them, as the text han 
not been found. App., Nos. 657, 658, 863. Since par. 42 was nent to press, resolutious front 
the legislature of Vermont (1818) favoring the district system have been found. App. 
No. 480b. 



112 AMERICAN HISTORICAL ASSOCIATION. 

will, has become a mere registering machine.^ lu the early 
years there were various amendments proposed to secure a 
uniform system of elections throughout the States. After 
many attempts to secure the choice of electors by districts 
had failed, nearly all the States by a sort of common under- 
standing adopted the general ticket system, and this method, 
although voluntary, has been retained ever since, with the 
recent exception of Michigan,^ and it seems to have become 
ingrafted upon the Constitution,^ or, as Professor Dicey would 
say, to have become one of the *' conventions" of the Constitu- 
tion. In the years immediately succeeding the election of 1824 
there was a concerted effort to so amend the Constitution that 
the election of President should never again devolve upon the 
House. In the course of a few years the excitement incident 
to this election was allayed, and as there has been no case of 
an election by the House since, there has been no popular 
alarm over this complication. The dispute of 1876, when the 
decision was in doubt several mouths, turned rather on the 
method of canvassing the vote.* 

Many of the plans proposed have been obviously impractica- 
ble. To leave the choice of the Chief Magistrate to a direct 
popular vote of the entire country seems as unwise to-day as 
it did at the time the Constitution was framed. In addition 
to the vast premium placed upon fraud and intimidation, the 
excitement of the election under the present system would be 
greatly intensified. Furthermore, it would seem undesirable 
to entirely do away with the influence of the States in the 
election, owing to the long-established custom and the appro- 
priateness of some recognition of the federal character of our 
Union. 

The system of electing the President by districts, either by 
the electoral system or without it, or witli the two votes of each 
State given at large or otherwise, would manifestly come nearer 
to representing the popular vote than does the present system, 
especially if there was some assurance of a just and permanent 

' The eleotorSf however, are only bonnd by moral obligation and cuatom to cast their 
votee for the cuididatea previooaly designated. In the ejection of 1824 three of the Clay 
electora deserted him, '* but for this defection Mr. Clay's name would have gone to the 
Honse of Representatives instead of Mr. Crawford's, and possibly Mr. John Qaincy 
Adams would never have been President." Stanwood, p. 80. Unsuccessful attempts were 
made to bribe one or more electors in 1870. Ibid., p. 830. 

'See ante, p. 86, note 4. 

* See Tiedman, The Unwritten Constitution of the U. S., chap. lU. 

< See ante, par. 50, p. 110, section 9, Morton's proposition. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 113 

arrangement of district boandaries.^ Bat without that assur- 
ance,^ which it would seem impossible to provide, there would 
still be the same danger of gerrymandering that there is in 
our Congressional elections. Of all the plans proposed, the 
district system has received the most favorable consideration 
in Congress. Not only did an amendment for the choice of 
electors by districts pass the Senate at four ditt'erent times 
between 1813 and 1824,^ but in subsequent discussions some 
application of the district system to the choice of President 
has received the support of many of the leading statesmen of 
the country.* 

The proposition for the diistribution of the electoral vote of 
each State among the candidates in the proportion the electoral 
ratio shall bear to the popular vote of each candidate seems 
the fairest and most desirable of all the plans presented, as it 
retains the relative importance of each State, and at the same 
time secures to the minority its due proi)ortion of the vote.* 

The almost countless variety of the plans proposed is not 
only indicative of the dissatisfaction there is with the present 
anomalous system, but also shows that it would be next to an 
impossibility to secure the adoption of a new method of elec- 
tion, owing to the difficulty of uniting a sufficient number of 
the States in favor of any one plan. The fact that it was 
imiK)ssibIe to secure the indorsement of any one of the plans 
proposed in the years succeeding the contested election of 
1876 by even one branch of Congress indicates that the 
adoption of a new system of electing the Chief Magistrate is 
improbable before the present method of amending the Con- 
stitution is itself changed. Since 1876 no proposition for a 
change of the method of electing the President has been 



1 The adoption of the district system in any of the propostxl forms woald undoubtedly 
insure the election of a President in political sympathy with the minority in the'Bonso 
of Representatives. 

> See Madison's Works, m, p. 383. 

■In 1813, 1819, 1820, and 1824, and the amendment passed by the Senate in 1860 would 
have permitted its use. See ante. par. 33, not4> 1 ; parn. 39, 49. 

* See ante, pars. 89, 43, 44. 

* The following are some of the reasons which have been urged for the adoption of the pro- 
portional system : (1) It provides for a direct vote. (2) It retains the electoral votes, while 
dispensing with electors and electoral colleges. (3) It is a more perfect exprension of 
popular will. (4) Keduoes the chance of a disputed electioii. (5) Renders impossible the 
election of a minority candidate. (6) Teuds to eliminate pivotal States, and insures a real 
contest in each State. (7) Discourages and prevents unfairness and fraud. In this respeft 
its superiority to other plans of amendment is conspicuous and unquestionable. " Tlie 
effect of any common fraud would be inappreciable, and the motive for committing fraud 
removed . ' ' Ante, par. 45. 

H. Doc. 353, pt. 2 8 



114 AMERICAN HISTORICAL ASSOCIATION. 

brought to a vote iu Congress, aud since 1880 even the slight 
promise of success implied in a favorable report by a committee 
of either House of Congress, has been lacking.' Likewise in 
recent years the general public has exhibited little interest iu 
the matter.' 

52. TIME OF ELECTION. 

Some of the amendments for changing the method of elect- 
ing the President contained clauses extending the time for 
casting the votes to two or three days, making our system more 
like the English. Three of these are cited by way of example. 

One amendment for the election of President by a direct 
vote by districts provided that the first Thursday and succeed- 
ing Friday of August of 1828 and every fourth year thereafter 
should be the election days. This was reported by the select 
committee of the Senate in 1826.^ 

A resolution proposing that the election of President should 
be held uniformly in the several States on the first Monday 
and succeeding Tuesday and Wednesday in the month of Sep- 
tember was received in 1837 from the legislature of Indiana.'^ 

The fourth Monday of October and the two succeeding days 
was fixed fpr the election days by the amendment introduced 
by Mr. Underwood of Kentucky, in 1842, for the nomination of 
Presidential candidates by the different State legislatures and 
election by the people.' 

It is noticeable that these propositions came largely from the 
frontier States, where the facilities for traveling were poor 
and more time was needed to reach the voting places. 

By the terms of the Constitution, "Congress may determine 
the time of choosing the electors, and the day on which they 
shall give their votes, which shall be the same throughout the 
United States."" The original act of Congress, passed March 
1, 1792, simply provided that electors were to be appointed 
thirty-four days preceding the first Wednesday in December. 

1 Amendmeut reported In 1880, App., Ko. 1508; ante, par. 45. Since the close of the 
flrat century of the hist^ny of the Constitntion there haa heen one report by the Houao 
Committee on Eleotion of Preeident and Vlce-Preaident, February 7, 1893, Fifty-second 
Congrese, second session, H. Kep. 2439. 

« The following articles contain valuable discussions of the merits of one or more of the 
different plans: Atlantic, vol. 42, 543; vol. 63, 428; Arena, vol. 5,286; Forum, vol. 12, 702 ; 
vol. 18, 532 ; No. Am. B«v., vol. 117, 383 ; vol 124, 1, 161, 341 ; voL 126, 68 ; voi 140 (February) . 

* App., No. S52. 
« App., No. 668. 
»App., No. 724. 

* Art. n, sec. 1, cl. 3. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 115 

The demand for a uuiform day for the choice of electors led 
to the frequent petition from the legislatores of the States for 
Congress to fix such a day by law/ and also for the insertion 
of a clause to this effect in certain of the proposed amendments 
in regard to the election of President, as the one presented by 
Mr. Gilmer^ in 1835.^ Ten years later Congress passed a law, 
which is still in force, fixiog upon the Tuesday after the first 
Monday in November as the day for the choice of electors.^ 

Some of the prox)osed amendments, especially those intro- 
duced in recent years, make provision for a uniform day for 
holding the election throughout the States;^ some retain the 
present date,' others fix upon another, usually somewhat 
earlier.^ Three of these in addition prohibit the voting for any 
other ofiicers, save Bepresentatives to Congress, on the day 
appointed for the election of Presidential electors.' Two of 
these were presented just after the Presidential election of 
1888, and were evidently suggested by a desire to prevent the 
trading of Presidential votes for votes for State ofiicers 
between the different political parties, as it was alleged had 
been done in New York in the election just held. 

53. FEDERAL CONTROL OVER THE ELECTION OF PRESIDENT. 

Although Congress has never gone to the extent of its con- 
stitutional powers in regulating elections to Congress,^ various 
amendments have been proposed which, if they bad been 
adopted, would have greatly increased that power of Congress 
over the election of President. One of the first of these, 
repeatedly introduced by Mr. Dlckerson of New Jersey for the 
election of President by districts, while not directly increas- 
ing the power of Congress, yet it limited the power of the leg- 
islature to alter the division of the State into districts at any 
other time than the decennial census.^ In 1823 a resolution 
was introduced to give Congress power to make or alter the 



' Especially in the thirtie.s and early forties. 

>App., No. 641. 

s Revised Statutes of the United StatoH, sec. 131. 

« As App.Nos.1437, 1438, 1503, 1508, 1537, 1542, 1589, 1639, 1672, 1697, 1705. 1731. 

■As App., Nos. 1439, 1514, 1569, 1624, 1640, 1735. 

* As App., No. 813, the first Tuesday in Angost. App., No. 1078. the second Tuesday 
in October. App., No. 1652, the third Tuesday in October. 

' App., Nos., 1652, 1731, 1733. No. 1514, however, proposed tho same day for the election 
of President and Vice-PreHldent, members of CongresH, and State and county officers. 
See post, par. 84. 

"See ante, par. 24. 

* Ante, par. 39. 



116 AMERICAN HISTORICAL ASSOCIATION. 

regulation prescribed by the State legislatures for the election 
of President, and to redistrict any State which was not divided 
as was directed.^ 

Many of the resolutions for the choice of the Executive 
aimed to give to Congress the same power in Presidential elec- 
tions as it already possessed over the Congressional. Since 
the civil war there has been a marked tendency in this direc- 
tion. Several amendments have been proi)osed authorizing 
Congress to prescribe 'Hhe time, place, and manner," and 
other regulations for conducting Presidential elections.' The 
one reported by the Committee on Privileges and Elections in 
both Houses in 1874-75, as well as that introduced by Senator 
Morgan, in 1876, conferred upon Congress the power to provide 
for the holding and conducting of all elections of President and 
Vice-President, and while it permitted the States to be divided 
into districts by the legislatures thereof, such division was 
subject to the revision of Congress.^ In 1880 a resolution was 
introduced proposing that the following section should be 
added to the twelfth amendment: <^The Congress shall have 
power by legislation to establish rules and regulations for 
certifying, transmitting, receiving, opening the votes of the 
electors, etc/ Up to the present time the procedure has been 
regulated by an act of Congress passed in 1792, which, with 
certain modifications, is still in force, although there is no 
express provision in the Constitution authorizing such a law. 
It would seem desirable that the control of the conduct of 
Presidential elections should be vested in Congress, but it 
is hardly probable that this reform will be secured. 

64. SETTLEMENT OF CONTESTED PRESIDENTIAL ELECTIONS. 

Not only is the power given to Congress to elect the President 
and Vice-President in case there is no choice by the electors, 
and to fix the time for the election, but it has also assumed 
authority to canvass and count the vote. The only ground for 
this authority is the ambiguous provision of the Constitution 



1 Mr. McDuffie of Soath CaroliDa, App.. No. 524. 

s As App., Nob. 1058, 1078, 1309, 1317, 1408, 1420, 1464, 1672. No. 1068, introduced by Mr. 
Jenckea of Rhode Island, was all inclusive, " Congress shall have power to pass laws 
providing for registration of voters, for ascertaining the qualifications, for the time and 
manner of conducting such elections and for preventing frauds therein, and for declaring 
the result." Propositions to confer u]>on Congress the power to prescribe the method of 
electing the President by the people have been discussed in ante, par. 49. 

« App., Nos. 1386, 1393, 1400. 

* By Mr. Morgan of Alabama, App., No. 1513. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 117 

that <' the President of the Senate shall, in the presence of the 
Senate and House of Bepresentatives^ open all the certificates, 
and the votes shall then be counted."* Three theories or 
interpretations of this clause have been held by Congress at 
three different periods in our history. The first theory, which 
held sway to 1821, was that the President of the Senate should 
count — that is, enumerate the votes. The second the/Ory , wh ich 
prevailed from 1821 to 1861, held that there was a ^' casus 
omissus" in the Constitution in this regard, and no one was 
empowered to '' count," counting being interpreted in the sense 
of '^canvassing." The third theory, which appeared in 1861, 
maintains that the two Houses shall '< count," which is inter- 
preted to mean to determine the legality of the votes.^ 

Acting on this last theory, Congress has determined all 
questions in regard to the doubtfiil votes since 1861 to 1887. 
Such questions have always been decided by party considera- 
tions, but in the contested election of 1876 it was impossible 
for Congress to determine the results of the election, under 
their existing rules, owing to the deadlock existing between 
the two Houses in which diit'erent political parties were in the 
majority. To meet this crisis, the '< Electoral Commission" 
was created. 

A premonition of the dangers likely to result from this un- 
certainty seems to have suggested an amendment to the Con- 
stitution shortly before each of the bitterly contested elections 
of 1800, 1824, and 1876. In 1798, while the issue of the contest 
in Pennsylvania was still in doubt, and the '^Eoss bill" was 
being framed,^ Senator Marshall of Kentucky included in his 
amendment to the Constitution, relative to the election of the 
President, a clause which provided that in case any contest 
should arise relative to any vote for President, the same should 
be determined by the Senate, and for Vice-President, it should 
be decided by the House of Eepresentatives.'^ 



I Twelfth amendment. 

* Abridged from McKnight, chapter 1. Since 1804 in nine of the Presidential elections 
controversiea have arisen on either or both of the following questions: (1) By whom 
shall the electoral votes be counted ? (2) In what manner shall be declared which are 
proper electoral votes? See reports of the following committees : Senate Report, Forty- 
third Congress, first session, Vol. ii. No. 395 (written by Mr. Morton); Hoase Report, 
Forty-fifth Congress, second session, Vol. iv, Ko. 819; House Report, Forty-sixth Con- 
gress, first session. Vol. n, No. 6. 

"For Ross bill, see O'Keil, pp. 77-83 ; MoKnight, pp. 262-269. The Ross bill was perhaps 
suggested by the English practice of deciding election petitions. Grenville act of 1770, 
May, Vol. i, p. 263. 

^ App., No. 829. Consideration of resolution was postponed to the next Congress. 



118 AMERICAN HISTORICAL ASSOCIATION. 

No farther attempt was made to remedy this defect by means 
of an amendment until 1823, when it would seem, in anticipa- 
tion of the trouble in the coming election, several propositions 
were introduced. Mr. Holmes, a Senator from Maine, in this 
year presented a resolution in both the Seventeenth and 
Eighteenth Congresses, which directed that all questions of 
the validity of the election of President, or of the proceedings 
therein should be determined by the members of both Houses 
in joint ballot. The rules of the proceedings should be deter- 
mined by law, but no alteration of the rules should have effect 
until two years after it should have been made. Questions 
concerning the validity of the election of the Vice-President 
should be determined by the Senate.' 

In the amendment proposed by Mr. Benton, in the same year, 
for the election of President by the vote of the citizens given 
directly in districts, a clause provided that in case two or 
more persons should have an equal number of votes in any 
such district elections, for the same office, that the returning 
officers should decide between them and certify accordingly.^ 
This provision was typical of that contained in several of the 
other proposed amendments for taking the votes by districts, 
both those involving a choice by a direct vote and those by 
electors.^ 

For more than forty years no amendment bearing directly 
upon this subject was presented.* Finally, in 1865, Congress 
adopted the "twenty-second joint rule,'' which was "the first 
actual assumption by Congress of the power to accept or reject 
an electoral vote."^ It provided that "No vote objected to 
shall be counted, except by the concurrent vote of the two 
Houses.'' It was passed to prevent the counting of the vote 
from the "reconstructed" States before Congress was ready to 
do so. Before this year closed an amendment had been pro- 
posed to confer ui)on Congress this much disputed power.^ 
Dissatisfaction with this rule, as well as the reappearapce of 
the problem in connection with the question of the legality of 

iApp.,Nos.621,630. 

* App., No. 926. 

* App., No. 637. DuriDg the time the Senate paused a hill which provided that no vote 
could be rejected without the concurreut conHent of both HouHen. Loat in the Honso. 
McEnight, pp. 269-271 ; O'Neil, pp. 117-119. 

* Indirectly the qnestion was touched upon in some of the schemes proposing to abolish 
the electoral system. 

* McEnight, pp. 271-273; see also O'Neil, pp. 171-173, 177-180; SUnwuod. pp. 249-252. 

* App., No. 1058 ; ante, par. 63, note. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 119 

certain electoral votes in 1868 and in 1872, led to the renewed 
introduction of proposed amendments dealing with the ques- 
tion of contested elections. 

As early as 1869, Mr. Robertson of South Carolina twice 
proposed an amendment to ^ve Congress power to establish 
tribunals for determining all questions as to the validity of 
the electoral vote of any State.* 

In 1873 Senator Frelinghuysen advocated leaving the deci- 
sion of all such disputes to the Supreme Court of tbe United 
States.^ A similar provision was incorporated into the arti- 
cles proposed in 1874-75 by the House Committee on Elec- 
tions and in the amendment thereto submitted by Mr. Wright.' 
The resolutions reported by the Senate Committee on Privi- 
leges and Elections in 1874-75, and introduced by Mr. Morton 
in tbe following year, were similar to the House resolutions 
above referred to, save that they empowered Congress to es- 
tablish tribunals for the decision of such elections as might be 
contested.* Mr. Morton pointed out the danger of the present 
method of declaring the results of the election, inasmuch as it 
failed to provide any adequate method for the determination 
of contested elections, and in addition placed arbitrary power 
in the hands of the Vice-President.' Early in 1876, before the 
Presidential election, three other amendments on this subject 
were presented. Two of these made provision in case the two 
Houses should not agree, when acting as judge of the returns 
and elections, that the matter of disagreement should be referred 
to the Supreme Court for final decision.® The third, proposed 
by Senator Edmunds, was reported by the Committee on the 
Judiciary in an amended form."^ This resolution contained a 



1 App., Nob. 1315, 1318. No. 1317, introduced by Mr.Bromwell of niinois proposed to 
give CongresB the power to decide as to the validity of the electoral vote, etc. Ante, 
par. 53. 

*App.,Ko.lS62. 

•App., Nob. 1386, 1301. These all provided that the returns of the election should be 
made to the Supreme Court, who should canvass, determine, and publish the results. 

* App., Nos. 1303, 1400. Ante, par. 44. 

* Record, Forty-third Congress, second session, p. 628. Besides party bias, personal 
interest might prejudice his decision, for the Vice-President may be one of the candidates 
for office, as has been the case already six times In our history, although in all these cases 
the duties of the office have been honestly performed. Adama in 1707; Jefferson in 1801 ; 
declare<l a tie; Tompkins in 1821, a candidate for Vice-President; Van Buren in 1837: 
Johnson in 1841, a candidate for Vice-President ; Breckinridge in 1861, a candidate for 
President. The Senate twice passed the Morton bill in 187&-76 to prevent the rejection 
of any electoral vote except by consent of both Houses. In case of double returuH, those 
only to count *' which the two Houses acting separately shall decide to be the true and 
valid return." McKnight, p. 275. 

* App., Nos. 1408, 1420. Proposed again in 1877, App., No. 1443. 
'App., No. 1423. 



120 AMERICAN HISTORICAL. ASSOCIATION. 

provision for the return of the electoral votes to the Federal 
Supreme Court, and further directed that the person having 
the greatest number of votes for President considered by the 
court to have been lawfully given and certified, should be Presi- 
dent, if such should be a majority of all votes cast. The court 
should, in the discharge of these duties, disregard errors of 
form and be governed by the substantial right of the matter. 
Action upon this amendment was postponed until the ne^t 
Congress. 

The English system of employing the judges to investigate 
contested election claims to seats in the House of Commons, 
and to make recommendation relative to what action shall be 
taken, doubtless suggested the expedient of referring the mat- 
ter to the Supreme Court. It is probable that to secure the 
action of the Supreme Coui*t in such an extrajudicial capacity 
an amendment to the Constitution would be required, although 
certain of the judges, contrary to their custom of not render- 
ing extrajudicial opinions,^ served on the Electoral Commission 
for the settlement of the contested election of 1876, 

The election of 1876 had taken place when Congress reas- 
sembled, and the necessity of devising some means for reach- 
ing a decision was now made evident. President Grant, in his 
annual message, declared that ^< the attention of Congress can 
not be too earnestly called to the necessity of throwing some 
greater safeguard over the method of choosing and declaring 
the election of President. *< Under the present system there 
seems to be no provided remedy for contesting the election in 
any one State." ^ To meet the crisis, several resolutions were 
presented.^ The Senate at once took the Edmunds amendment 
into consideration. After it had been amended so as to per- 
mit its operating upon the determining of the vote in the last 
election, if ratified before the 1st of February, 1877, by the 
necessary number of States, the resohition was brought to a 
vote December 14, and defeated by the vote of 14 yeas to 31 
nays.* 

The election of 1876, settled in 1877 by an extraordinary 
tribunal, suggested permanent tribunals of some kind. In 



■See Marstiairs Life of Waahington. Vol. v., p. 441; United States v. Yale Tod, 13 
Howard, 62, note; United States v. Ferrara, ibid., 40, note; Gordon v. United States, 2 
Wallace, 561 ; T'nited States f . Jones, 117 U. S., 697. For practice of the judiciary in the 
States, see Thayer, Cases on Const. Law, Part I, pp. 175-176. 

>App., No. 1430. 

3App.,Ko9.1431,1436. 

* The electoral bill of 1877, establishing the Electoral Commission, was paased instead. 
MoEnight, pp. 276 et seq. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 121 

the fall of 1877 Senator ICatoii of Connecticut proposed a 
means for determining contested elections more iu keeping 
with the views of the champions of State rights.^ This pro- 
vided that a tribunal for the decision of all contested issues 
arising in a Presidential election should be established in each 
State. The governor of each State, by and with the advice of 
the senate, at least a year previous to the election, stiould 
appoint not less than five persons learned in the law, to whom 
should be referred, in such manner as the legislature of the 
State should direct, all such cases of contested election, and it 
should be their duty to hear and determine every such case 
and certify the same thirty days before the electors should be 
called upon to give their votes. 

The resolution, first presented by Mr. Springer in 1877 and 
introduced by him in every Congress since 1882, relating to 
the election of President, stipulates that the joint convention 
of the Senate and House shall be the judge of the election, 
returns, and qualifications.^ Various other amendments con- 
tinued to be introduced, some renewing the propositions to 
refer the decision to the Supreme Court in case the two Houses 
could not agree,^ others empowering Congress to declare by 
law by what authority the returns should be canvassed and in 
contested elections determined,^ and still others to leave the 
decision to Congress itself.**^ Resolutions proposing to leave 
the decision of any contested election to the highest judicial 
tribunal of the State, and for the counting of the votes in 
accordance with the decision, have been introduced in every 
Congress since 1881.^ Two resolutions foreshadowed the pro- 
visions of the law of 1887, one of these being reported by the 
select committee in the House in 1878.^ 

Nothing, however, was done, although action was urged by 
the successive Presidents until 1887, when Congress decided 
that an amendment was not necessary, and passed a statute 
embodying in some degree the provisions proposed in the 
amendment of Senator Eaton, already referred to. It pro- 
vides that tribunals appointed in and by each State shall 



> App., No. 1463. 

* App., Nob. 1439, 1624, 1640, 1735. This wan to be the incoming rather than the ontgoiug 
Congress. Ante, par. 15. 

*App.,Nos. 1443, 1447. 

.4 App., Nos. 1464. 1672. 

'^ As App., No. 1508, reiwrted by select committee of the Honse. To be counted as cer- 
tified unless r^ected by both Houses. 

« App., Nos. 1537, 1689, 1639, 1697. 

' App., Nos. 1475, 1493. 



122 AMERICAN HISTORICAL ASSOCIATION. 

determine wbat electoral votes from the State are legal votes; 
in case the State has not appointed snch a tribunal, then the 
two Houses of Congress, by concurrent vote, shall determine, 
iu case of double returns, which votes are legalJ 

By this act a method of counting the electoral vote has 
finally been devised which promises a prompt and equitable 
decision of contested elections. Thus Congress, in harmony 
with its claim of the past quarter of a century, has asserted 
its right to supply the ^< casus omissus" of the Constitution 
without waiting for a formal amendment. 

65. EXCLUSION OF ELECTORS FROM APPOINTMENT BY THE PRESIDENT. 

In order to guard against the danger of the President's 
rewarding electors, especially in times of great party excite- 
ment, by giving them offices after he took his seat, several 
proposals have been made to add to the disqualification of 
Senators and Representatives, forbidding their appointment 
to office during the time for which they have been elected, or for 
a longer period. There have been at least nine other resolu- 
tions providing that the Constitution should be so amended 
that neither electors nor members of Congress, in the event 
of the election of President devolving upon the House, should 
be appointed to any office within the appointing iK)wer of the 
President during the continuance of that President in office.* 
The first of these was presented by Mr. Smyth of Virginia, in 
1823, and was the only one that included Presidential electors 
within its prohibition.' 

The appointment of Clay to a Cabinet position by President 
Adams lent color to the charge of a bargain, and was the occa- 
sion that led to the proposal during the period 1826 to 1836 
of seven distinct propositions to amend the Consititution as 
above. General Jackson himself took occasion to recommend 
such an amendment in his first annual message, in 1829, and 
again in 1831 he renewed his recommendation.* 

The resolution introduced by Mr. Weems in 1826 had this 
peculiarity that it only proposed to make such members of 
Congress ineligible to appointment ''as shall stand recorded 
as having voted upon the election.''' 



 statutes of the United States. Forty-ninth Conjp*eHs, second session, chap. 90, p. 373. 

> App., Nos. 516, 657. 5«7, 581. 595, 596, 606, 635, 655, 980. 

»App., No.Sie. 

«App.,Kos.596,606. 

• App., No. 567. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 123 

Only one other amendment of this character has been pre- 
sented. A clause of the amendment presented by Senator 
Davis of Kentucky, In 1863, proposing a very novel scheme for 
the choice of President by both Houses of Congress meeting 
in joint session, provided that no Senator or Representative 
who should have voted for the candidate elected should be 
appointed to any office by the President.' 

A somewhat analogous proposition related to the judges of 
the Unit'Cd States who might be called upon to canvass the 
returns of the election. The Edmunds resolution for the deci- 
sion of contested-election cases by the Supreme Court stipulated 
that the justices of the court should be ineligible for election 
as President or Vice-President. On motion of Mr. Merrimon 
of North Carolina an additional provision was added to the 
original amendment, which debarred a judge of the Supreme 
Court from receiving appointment to any office under the 
United States Government until ''the expiration of four years 
next after he shall have ceased to be such justice.''^ 

56. TERM OF PRESIDENT AND VICE-PRESIDENT. 

Over one hundred and twenty-five amendments have been 
submitted to change the term of President and fix the period 
of eligibility.' These were brought out chiefly by the fear that 
the President would use the patronage of his office to secure 
his reelection.* More than fifty of these have been proposi- 
tions to fix the term at six years.^ Such an amendment was 
proposed for the first time by Mr. Hemphill of Pennsylvania, 
in 1826, as one of the provisions of his resolution for the elec- 
tion of President. This change has been advocated at different 
periods ever since, within recent years more frequently than 



1 App., No. 1423 ; ante, par. 54. 

* The Committeo on tbe Judiciary reported the main reaolntion, but it wan lost. See 
podt, par. 70. 

* In the Federal Convention varions proposals were made in regard to the tenure of the 
£xecntive, varying from a three years' term to one of " good behavior," Elliot's Deb., v, 
pp. 142, 143, 327. Twice a seven years' term with restriction upon eligibility for reelec- 
tion was adopted. Ibid., pp. 149, 369. The report of tho committee of eleven of Septem- 
ber 4, 1787, fixed the term at fonr years. This was tho first time a fonr years' term hail 
been proposed. It was evidently a compromise between the party desiring a limited term 
and the one advocating a life tennre. Ibid., p. 507. 

4 See Senator Wade's speeoh; Globe, Tliirty-ninth Congreas, first session, pp. 931-932; 
Somner's speech ; Globe, Forty-second Congress, second session, p. 259. 

•One term of six years. App., Noa. 588, 501. 595a, 009. 645, 653, 660, 664, 667, 745, 869k, 
869m, 874g, 995, 1198, 1204, 1336, 1356, 1369, 138H, i;{89, 1402, 1403, 1412, 1412a, 1422, 1446, 1449. 
1456, 1465. 1492, 1630, 1633, 1638. 1663, 1070, 1722, 1724. Six-year term, no limit as to eligi- 
bility ; App., Xos. 904, 1375, 1395, 1396, 1404. 1412, 1439, 1498, 1534, 1569, 1624, 1640, 1732. 1735. 



124 AMERICAN HISTORICAL ASSOCIATION. 

ever before. All but fourteen of these stipulated that the 
President should be ineligible to reelection.* 

One proposition only has been presented which contemplated 
reducing the length of tbe term as fixed by the Gonstitution. 
This was the amendment presented by Senator Hillhouse, in 
1808, in connection with his plan for the choice of President 
by lot from tbe retiring Senators. The term was placed at one 
year.* Besides the amendments proposing to increase the term 
to six years, only two propositions have been made to extend 
the present period to any other term of years. The first of 
these, fixing the term at five years, was proposed by Mr. Tucker, 
in 1831; tbe other, prolonging the term to eight years, was 
introduced by Mr. Hudd of Wisconsin, in 1888.^ 

A large number of the amendments did not propose to change 
the term of the President as fixed by the Gonstitution, but to 
limit the number of times the same person could be chosen 
President. The amendments on this phase of the subject natur- 
ally fall into three groups : First, propositions limiting tbe same 
person to two terms; second, propositions restricting the Presi- 
dent from being eligible to a reelection until after the expira- 
tion of a certain number of years; and third, propositions 
restricting the President to one term only.* 

(1) The convention which ratified the Constitution in New 
York proposed an amendment with the first of these objects 
in view.* This same proposition, however, was not advocated 
in Congress itself until 1823, when Mr. Dic-kerson presented an 
amendment for the election of President, in which such a pro- 
vision appeared." A similar clause was incorporated in the 
resolution of the Senate Committee on Elections in the next 
year."' Another resolution from this same committee, which 
was limited to this subject, passed the Senate at this session 
by the unusually large majority of 36 yeas to 3 nays, but was 
not reported from the committee in the House.'^ A similar 
amendment, introduced by Mr. Dickerson, passed the Senate 
in 1826, but the vote in the House on its commitment showed 



^ As above. See following tllBcnsflion. 
' App., No. 392. See ante. par. 47. 
»App.,No«. 605, 1717. 

*Tbe propositions to change th(> term to nix yearn and render the President forever 
after ineligible are included in thiH classilication. 
» App., No. 65. 
"A pp., No. 520. 
'App., No. 684. 
•App., No. 535. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 1 25 

that it coald not secure the support of two-thirds of that body.* 
In 1830 Senator Dickerson made another inefifectaal attempt 
to secure the adoption of this amendment, bat it was not even 
brought to a vote in the Senate.' Not until 1876 was this same 
proposition revived. In that year the House, to forestall all 
attempts on the part of the friends of General Grant to secure 
for him a third term, passed by the decisive vote of 234 to 18 
a resolution which declared, <^That in the opinion of this House, 
the precedent established by Washington and other Presidents 
of the United States, in retiring from the Presidential office 
after their second term, has become by universal concurrence 
a part of our republican system of government, and that any 
departure from this time honored custom would be unwise, 
unpatriotic, and fraught with peril to our free institutions."^ 
A month later it was proposed that this unwritten amendment 
should be incorporated into the Constitution, but the majority 
of the House were in favor of an amendment limiting the 
tenure to one term.'* This amendment was proposed for the 
last time in 1880, and was doubtless suggested by the attempt 
of some of General Grant's friends to secure for him the 
Republican nomination at the Chicago convention of that year.' 
It was argued by some who had been opposed to a third term 
in 1876, that the interval of four years that had intervened 
would ^'not be a breach of the unwritten Constitution." 

(2) Had the amendment suggested by two of the ratifying 
conventions been adopted, the designs of the Grant men in 
1880 would have been thwarted by the terms of the Constitu- 
tion.^ These amendments provided that no person should be 
capable of being President for more than eight years in any 
term of sixteen and fifteen years, respectively.'' 

In the First Congress Mr. Tucker of South Carolina moved 
to add an amendment to the list to be recommended to the 
States, making it impossible for any ]>6rson to be President 

1 App., No. 545. Diokersou'ft speech gave a review of the plans before the Constitu- 
tional Convention. Interesting to note that Benton voted against it, later with Jackson 
ho favored one tenn only. 

* App., No. 804. 

'December 15, 1875. Introduced by Mr. Springer; House Journal, pp. (MMTZ. As early 
aa 1872 the Kew York Herald had raised the cry against "Caesariam." See article by 
McMaater in Fornni, Xovember, 1895. For Grant's letter in regard to a third term, see 
McPherson's Hand Book of Politics for 1876, p. 154. 

* App., No. 1411. 
•App., Noe. 1511, 1515. 

* Virginia, North Carolina. App. , Nos. 38, 91. 

' In the convention of 1787, Mr. Pijickney had proposed ' ' that no person should be eligi- 
ble for more th«ii six years iu any twelve." Selected, five States to aix. Elliot Y, p. 896. 



129 AMERICAN HISTORICAL ASSOCIATION. 

more tban eight years in auy term of twelve years. It was 
lost/ and in tbe Senate a motion to add an amendment similar 
to tbat proposed by Virginia was also lont.^ 

Possibly Washington may bave been influenced somewhat 
by these propositions when, in 1796, be was urged to' accept a 
reelection for a third term. 

In 1803 a committee of tbg Senate reported a resolution tbat 
provided "tbat no person who bad been twice successively 
elected President shall be eligible as President until four yeiirs 
elapse, when he may be eligible to the office for four years, and 
no longer.'' But tbe Senate rejected it by the emphatic vote 
of 4 to 25.3 

From 1826 to 1850 there were seven resolutions presented, 
four of which were introduced by Mr. Underwood of Ken- 
tucky, to prevent any President from being eligible to office for 
tbe next ensuing term.^ Since 1873 this same restriction has 
been i)ropo8ed eleven times in connection with a proposition 
to fix the term at six years.*^ 

(3) The simplest and most effective remedy would seem to 
be the restriction of all Presidents to a single term, a provi 
siou which tbe Federal Convention bad first unanimously 
adopted.'' Over ninety proposed amendments bave affirmed 
tbat principle. It was presented to Congress first in 1815 as 
one of tbe amendments proposed by the Hartford convention, 
by tbe member irom Massachusetts and Connecticut, upon tbe 
instruction of their legislatures/ In addition these resolu- 
tions provided that tbe President should not be elected from 
tbe same State two terms in succession, thus showing New 
England's jealousy of Virginia.^ 

This change was not again suggested until after the defeat 
of Jackson, in 1824. Then this proposition was presented 



I App., No.205. 

■App.,No.270. 

'A pp., No. 302. No Rmendment seoma to have been called out in opposition to the 
Invitation ext^^ndod to Jefferson by ttio logiHlatures of several States to accept a tliird 
t erm . The lo ^ islutu res of Georgia, Maryland, New Jersey. North Carolina, Pennsylvania. 
Vermont, the senate of New York, and the hoase of delegates of Virginia, requested hint 
to accept a third tenn. JeflTerson, however, declined. See "Reply to Vermont Address, " 
Writings of Jefferson, viil, 121; also ibid, iv, 565; v, 407. I^or his criticism of this 
ftoRtnn) of the Constitution at the time of its adoption, see ibid. Ii, 317, 330, 355, 5S6; iii, 13. 
For hlH opinion in 1813, see ibid., vi, 213. 

* App., Nos. 564, 609. 674, 690, 718, 755, 760. 

'^ Five of theHO by Mr. Springer. App., Noe. 1375d, 1395, 1396, 1404, 1439, 1498. 1534, 1569, 
1624. 1640, 1735. 

'^ This provision iixvd the term at Si>ven years. Elliot, i, pp. 208-209. 

» App., Nos. 431, 4.30, 447. 

"See Adams, New £ug. Federalism for J. Q. Adams's couuuent on this, p. 322. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 127 

repeatedly, both as a direct amendmeut and as a provision of 
many of the amendments proposing a new method of electing 
the President. Between the years 1826 and 184G this change 
was proi>o8ed some forty-five times.' Jackson, in each of his 
eight annual messages, recommended to Congress an amend- 
ment restricting the eligibility of any person to the Presidency 
to one term of four or s>x years;^ In 1835 a resolution of this 
character was considered at length.^ Representatives from all 
sections advocated the change at different times. John Quincy 
Adams, in his '^ Jubilee Address,'^ in 1839, when referring to 
the fact that the example of Washington and Jefterson had 
been held obligatory upon their successors, declared : ^' If this 
[practice] is not entirely satisfactory to the nation it is rather 
by its admitting one reelection than by its interdicting a sec- 
ond."^ That this reflected the public sentiment of the time 
is shown by the fact that within the decade embraced by the 
years 1832 to 1842 the legislatures of at least nine States pro- 
posed resolutions favoring the restriction to a single term.' 
The Whig party committed itself to this princi])le, and its 
candidate in the election of 1840, General Harrison, both in his 
speeches during the campaign and in his inaugural, promised 
^^to lay down at the end of the term faithfully that high trust 
at the feet of the people." ^ 

After 1846 this amendment was not again proposed for several 
years.'' Mr. Vallandigham incorporated this restriction in his 
scheme for electing the President, presented by him in 1861. 



> App., No8. 561, 579, 588, 580, 590, 591, 595a, 596, 602, 606, 624, 626, 631, 634, 640, 645, 646, 
653, 659, 660, 664, 667, 681, 684, 694, 702, 704a, 705, 706a, 706b, 707, 708, 709, 710, 711, 712, 713, 
717», 726, 732, 742, 745, 748. 

* Consiiitoncy of Jackaon called in qneation. ^Nilea' Rt^gister, Vol. XL, pp. 387-389. 

* App., No. 640. 

* The Jubilee of tbe ConHtitntion, New York, 1839. Quoted by O'Neil, p. 236. 
*6eorgiA (1833), although three years before ahe had opponed the chaogo. Senate 

Journal, Twenty-first Congress, flrst session, p. 98. Indiana (IKH), Maine <1K41). Massa- 
chusetts (1841), Rhode Island (1841), Connecticut (1841), Indiana (1841), Delaware (1841), 
Vermont (1841), Vermont (1842), Kentiicky (1842). 

* Statesman's Manual, ii, pp. 1199, 1200. Preamble ot Sumner's resolution containing 
the above quotation. Globe, Forty-second Congress, second session, p. 259. This was the 
watchword of the Harrisburg convention of 1839, and the Whig party in 1844 nominated 
Clay on the platform of " a single term for tht; Presidency. ' Sec Clay's 8]M'ech of June 27, 
1840, and letter of September 13, 1842. In the former, after asking for a "provisitm to 
render a ])erson ineligible to the Presidency after a service of one term. " he said : ''Much 
observation and deliberate reflection l:a8 satistied me that too much of the time, the thought, 
and the exertion of the incumbent are occupied during the first term in ^eeiiriug his 
reelection. The public busincHs consequently suffers." Chief Justice Marshail had 
written in 1828 that he was "disposed to try the effect of oonliuing the Chief Magistrate 
to a single term.'* Niles' Register, xxxv, ]i. 314. 

' An article in Niles' Register in 1847 opjioses this change. Vol. lxxii, ]>. 166. 



128 AMERICAN HISTORICAL ASSOCIATION. 

It might be set aside at the desire of two- thirds of all the electors 
of each section or of the States of each section when the election 
devolved upon Congress.' 

Daring the reconstruction period an amendment to render 
the President ineligible to a second term Tfas presented fre 
quently. Senators Wade and Sumner, Representative Ashley, 
and President Johnson repeatedly advocated this restriction. - 
Since 1874 the same proposition has been urged some twenty- 
one times, and on two occasions has been brought to a vote in 
the House.^ In 1875 the amendment reported by the Commit- 
tee on the Judiciary, fixing the term of the President at six 
years and rendering the President ineligible to reelection,^ 
failed for the lack of the necessary two-thirds vote.^ In the 
first session of the next Congress the question was called up 
anew by a mt^jority and minority report of the Committee on the 
Judiciary. Both the reports agreed that the President should 
not be eligible to reelection, but differed as to the tenure, the 
majority favoring the present term of four years, the minority 
one of six years. The highest vote obtained for any of the 
amendments proposed was 145 yeas to 108 nays,^ Within 
the last few years amendments limiting the President to one 
term of six years has been a favorite proposition.'' Of these, 
one proposed to make the retiring President a Senator for life/ 
and two others, to pension him for the same period.^ 

> App., No. 904. 

s App.,Xoft. 995, 1039m, llOi, 1114, 1192, 1194, 1194a, 1198, 1204, 1207, 1210, 1225, 1227c, 1229, 
1241, 1283d, 1343, 1352, 1356, 1368, 1309. Senator Wade declared the absence of this restriction 
from the Constitution as "among the most glaring defects " in the same. Globe, Thirty- 
ninth Congress, first session, p. 932. See preamble to Sumner's resolution, Globe, Forty- 
second Congress, second session, p. 259. He declared that civil service reform without 
this resection would be the play of Hamlet with Hamlet left out. This the friends of 
Grant considered as an attack upon him. For Sumner's speech attacking Grant in 1872, 
see Globe for May 31. Ashley's speech, see ref. A])p., No. 1227c. 

* App., Kos. 1389, 1306, 1402, 1403, 1404, 1406, 1412, 1412a, 1449, 1498, 1551, 1630, 1638, 1688, 1663, 
1670, 1715. 1717, 1722, 1724, 1782. 

* The Vice-President also when the ofiice of President devolved upon him. 

* App., No. 1390. Vote 134 to 104. Not to afifect the person then President. The 
constitution of the Confederate States bad a similar provision. 

•App., No. 1412. 

'Buohanan in 1856 gave his adhesion to the principle; promised bv Hayes; advocated 
by Tilden in 1876 ; favored bj' Cleveland in his letter of acceptance of 1884 ; called fur by 
the People's Party in 1892. In the Fifty-third Congress a resolution to make the Presi- 
dent ineligible to succeed himself was reported favorably. House Report No. 1658. 

" App., No. 1403. 

* App., Nos. 1551, 1633. The first provided fur an annual iiousiun of $6,0U0, the niH;ond 
for $10,000 annually. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 129 
67. COMPENSATION OP PRESIDENT. 

Oongreas, acting under the provision of the Constitution, 
fixed the salary of the President at $25,000. Only two amend- 
ments have been proposed to change his compensation. 

The first of these was introduced by Senator Hillhouse of 
Connecticut, in 1808, in connection with his series of amend- 
ments, providing that the compensation of the President shall 
not exceed $15,000 per year.^ The other, suggested by excite- 
ment over a recent bill passed by Congress changing the com- 
pensation of members, was presented by Mr. Fuller of Massa- 
chusetts, in 1822, to fix the compensation of the President, 
Vice-President, and members of Congress, decennially.* In 
1876 an attempt was made to reduce the President's salary to 
the old figure, it having been raised in 1873 to $50,000. The 
effort, however, failed, as President Grant vetoed the bill, and 
no attempt was made to pass it over the veto.^ 

In 1882 and in 1884 amendments were introduced providing 
that the President should not be eligible to a second term, but 
should be given a pension for life.** This is probably but the 
beginning of a movement to pension civil officers, as is cus- 
tomary in European countries. 

58. POWERS OF THE PRESIDENT—THE VETO. 

Eemarkably few attempts have been made to interfere with 
the President in the exercise of the independent duties of his 
office, but, on the other hand, special exception has been taken 
to those powers, which have brought him into collision with 
Congress.' Of these the veto power has been most frequently 
attacked. 

The amendments contemplating some change in the exercise 
of the veto power naturally fall into three distinct classes: 
First, attempts to destroy the power, second, attempts to 
diminish the power, and third, attempts to enlarge the power. 

>App.,No.393. 

2 App., No. 513. Ante par. 13. 

*Ma8on*8 Veto Power, Harvard Hist. Mod. No. 1, p. 46, App. A, No. 99. Mr. Southard'H 
amendment to create an executive council in 1878 provided a salary of $30,00U for each 
with no perquisites. No. 1465. Ante p. 70. 

* App., No. 1551. By Mr. Berry, one tertu of four years, with an annual jiensiou for life 
of $6,000. App., No. 1633. By Mr. Millard, one term of six years, with au annual pension 
for life of 910,000. 

* A motion to associate the national judiciary with the President as a council of revi> 
sion was three times rejected in the Convention of 1787. Elliot v, pp. 154, 349, 429. Sug- 
gested by a similar council iu New \!ork under the constitution of 1777. 

H. Doc. 353, pt 2 9 



130 AMERICAN HISTORICAL ASSOCIATION. 

(1) Two amendinents have been presented to deprive tbe 
President altogether of his important prerogative of the veto. 
The first of these resolutions was proposed by Mr. Lewis of 
Virginia, in the House in 1818.^ It provided that in the future 
" the President of the United States shall not have the power 
of approving or disapproving any bill or bills or joint resolu- 
tion passed by the Senate and House of Representatives." 
This proposition was but one of a series of amendments intro- 
duced by Mr. Lewis at this time, to curtail the power of the 
President.^ Some of the series stipulated that the judges and 

» w • 

Cabinet oflftcers should be chosen by Congress.^ 

The second proposition of this class was introduced in the 
House in 1839, by Mr. Taliaferro, also of Virginia, in connection 
with a similar series of amendments depriving the Executive 
of the power of appointment and removal.* The article rela- 
tive to the veto was as follows: ''The assent of the President 
to bills passed by the two branches of Congress shall be dis- 
pensed with.'' No important action was taken on either of 
these resolutions. 

(2) There have been some sixteen propositions to enable a 
bill to be passed over the President's veto by a majority vote 
of all the members of each House instead of two-thirds of those 
present. All but six of these amendments were introduced 
between the years 1833 and 1842. The frequency with which 
Jackson and Tyler used this power, especially the unexpected 
attitude of Tyler toward the measures of the Whig party, was 
the occasion that gave rise to these attacks upon the Presi- 
dent's prerogative. The firstof these resolutions was presented 
by Senator Kent of Maryland, in 1833, but was laid on the 
table in the next session of Congress.* Mr. Kent again intro- 
duced the measure, and in a speech in support of the proposed 
change concisely stated the arguments in its favor.*' First, 
" the fact that the veto power as then exercised tended to unite 
the legislative and executive branches, a union which was con- 
trary to the fundamental principles of our Government;'' sec- 
ond, " the veto had been granted to Executives only as a means 



> App., No. 475. 

* ThiH may have been suggested by Madison's veto of an internal improvement bill in 
1817. Mason's Veto Power, App. A, No. 8. 

a Post, pars. 59, 69. 

* App., No. 691 . Post, pars. 50. 60. 
•App., No. 629. 

* App., No. 636. ' ' Startled by ascertaining something of the extent to which this power 
is snsceptible of being abusod, able and patriotic statesmen liave suggested various expe- 
dients for its limiUtion." Niles' Kegister, vol. lxxu, pp. 165, 166. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 131 

of defense, and that recent Presidents had exceeded their 
authority," and lastly, ^*as the Executive was exceedingly apt 
to encroach upon the other branches of Government, the power 
of that department should be curtailed."^ 

Mr. Underwood of Kentucky was especially zealous in 
championing such a change, introducing a similar proposition 
at six different times, in 1842 at the request of the general 
assembly of his State.* 

Two attempts made during Tyler's Administration are espe- 
cially noteworthy. The first of these was a joint resolution 
submitted by Henry Clay, in December of 1841.^ Clay was so 
aroused by Tyler's vetoes that he was led to term this power 
of the President " that parent and fruitful source of all our 
ills." * In addition to the clause to permit the passage of a bill 
over the veto by a majority vote, his resolution contained a 
provision which was calculated to prevent a " pocket veto.'^ It 
was as follows : << If any bill shall be presented to the President 
within a period less than ten days from the termination of the 
session of Congress during which it shall have passed and 
shall not be returned by him at that session it shall be his duty 
to return it within the three first days of the succeeding ses- 
sion. If he shall not so return it, with his objections, within 
the time therein required the two Houses shall proceed to con- 
sider it as if it had been returned during the session at which 
it was passed, and if upon such reconsideration it shall again 
pass each House by a majority of all members it shall become 
a law." There was a very similar provision for the prevention 
of a "pocket veto" by the New York council of revision in the 
constitution of that State as adopted in 1777.^ Probably 
Clay's resolution was modeled after the New York article. 
This resolution was considered in the Committee of the Whole 
at various times throughout the session, but was not brought 
to a vote. 

In August of the following year a select committee of the 
House reported through their chairman, John Quincy Adams. 
The report, after denouncing Tyler's wholesale use of the veto 



> Mason's Veto Power, p. 137. 

* App., Noa. 648, 678, 720, 729, 755, 750. See Nilee' Register, XLV, p. 416. 

* App., No. 716. One presented in 1841 by Mr. Owsley, App., No. 714. 

^Sohnrz, Henry Clay, ii, pp. 221-222. At time of Ja^'kson's veto of bank bill he had 
suggested this same amendment, ibid., i, p. 377. Note Harrison's views upon tlie veto 
power in liis inaagnraL Statesman's Manual, pp. 11*00-1202. 

* New York constitution, 1777, Art in, I*oore, Charters and Constitution, part 2, p. 1332, 
This constitution remained in force until 1821. 



132 A.MERICAN HISTORICAL ASSOCIATION. 

power as tyraiiuical and meritiug impeachment, closed with a 
recommendation for a constitutional amendment similar to that 
proposed by Mr. Kent several years before.^ The amendment 
was rejected, as a two-thirds vote in the affirmative was not 
secured, the vote standing 99 to 90.^ These events illustrate, 
as Carl Schurz says in referring to Clay's proposition, "the dan- 
gerous tendency of that impulsive statesmanship which will 
resort to permanent changes in the constitution of the State in 
order to accomplish temporary objects." ^ 

Six attempts to obtain the same amendment have been made 
at infrequent intervals since/ One of these, proposed by Mr. 
Ashley, in 1869, was suggested by the contest between Presi- 
dent Johnson and Congress.^ This proposition was introduced 
for tbe last time by Senator Stewart, in 1888, and probably was 
called out by President Cleveland's frequent use of the veto 
power.^ 

(3) In late years several attempts have been made to en- 
large the power, especially by adopting a provision which is 
found in many of the State constitutions." 

The practice of attaching ** riders" to appropriation bills, 
which became common during the sixties,^ had grown to such 
an extent that President Graiit, in his annual message of 
1873, recommended an amendment " to authorize the Execu- 
tive to approve of so much of any measure passing the two 
Houses as his judgment may dictate, without approving the 
whole, the disapproved portions or portion to be subject to the 
same rules as now. I would add that there should be no leg- 
islation in Congress during the last twenty-four hours of its 
sitting except upon vetoes, in order to give the Executive an 



* App., No. 730. (ilobe. Twenty seventh Congress, secoud .session, p. 896. 
*Ma«ou's Veto Power, pp. 70-71. 

■S<*hnr/., Clay, n, p. 222. See Nilos' Register, Lxvii, pp. 165-166. '"The remedy was 
worse than the disease." The Wliig attack u]>on the veto led the Democratic party to 
insert u " pinuk " in their ]>latforni8 from 1844 to 1856 approving the power. 

*App., N08.759, 1027. i:U5a, 1:{,-j3, 1614, 1725. 

* App., No. IKlSu. Keferen<re to speech see App. Mr. Ashley had presented the resolu- 
tions impeaehing the President. For other amendments ]>roposed at the same time to 
limit the power of the President see post, ])ars. 59, 63. 

* Mason's Veto Power, iip. 89, 90, 127; 128. Since 18e9 it has again been introduced by 
Mr. Butler of North Carolina, in Fifty-fourth Congress, April 7, 1896. 

' The constitutions of twenty States permit the veto of items in appropriation bills: 
New York, New Jersey, Pennsylvanii^ Minnesota, Nebraska, North Dakota, Montunn, 
Wyoming, Idaho, West Virginia, Missouri. Arkansas, Texas, California, Colorado, Georgia, 
Alabama, Florida, Louisiana. Mason's Veto Power, App. E, p. 216. 

"Judge Keagan saiil J hat in the jjeriod 1862-1S75. 387 measures of general legislation had 
passed as jirovisions of appropriation bills. Davis Am. Const. Johns iiopkins University 
Studies, third series, p. 489. 



1>R0P0SED AMENDMENTS TO THE CONSTITUTION. 133 

opportunity to examine and approve or disapprove bills im- 
derstandingly." Such an amendment, continued the Presi- 
dent, "would protect the public against the many abuses and 
waste of public moneys which creep into appropriation bills 
and other important measures passed during the expiring 
hours of Congress, to which otherwise due consideration can 
not be given." ^ 

Early in 1876 two resolutions, embodying the President's 
recommendation in the case of appropriation bills, were intro- 
duced, the first by Mr. Faulkner of West Virginia.* Presi- 
dent Hayes, in consequence of his struggle with Congress 
over the attaching of riders to appropriation bills, renewed 
the recommendation of his predecessor.^ This suggestion was 
not acted upon, but shortly after resolutions to permit the 
veto of items in the appropriation bills or river and harbor 
bills were introduced. There has been a constant agitation in 
favor of this change, besides the recommendation of Presi- 
dent Arthur in 1882,* some thirty-one resolutions of this char- 
acter having been presented in the ten years since 1878, but 
in no case has the resolution been brought to a vote.^ 

The advantages to be derived from such an increase of the 
veto power of the President are obvious. In the first place, 
it would make the President practically independent of the 
coercive power of the legislative department, and, in addition, 
as President Grant pointed out, would check extravagant 
legislation. 

Four attempts to extend the power of the veto in another 
way have been made. It was to be eflPected by requiring a 
two-thirds majority of all the members of each branch of Con- 
gress to pass a bill over the veto instead of two-thirds of the 
members present, as is the present practice.*^ These resolu- 
tions were probably suggested by President Arthur to the 
movers of the amendment, who, it is noticeable, were from his 
own State, as a mark of his displeasure in consequence of the 
passage of the river and harbor bill over his veto on the 2d 



'App., No. 1371. 
» App., No8. 1414, 1424. 

"Hoiiso Journal, Forty-sixth Coni^eBs, Becond session, p. 1174. Mason's Veto Power, 
p. 137. The list fiimished Mr. Mason was slightly incomplete. 

* App., Ko. 156.5a. This was in his first (aunaal) message after the passage of the river 
and harbor bill over his veto. Mason's Veto Power, pp. 104-105. 

•App., Nos. 1414, 1450,1476, 1479, 1480, 1489, 1495, 1445a, 1502, 1462, 1564, 1565a, 1567, 1568, 
1574, 1576, 1579, 1581, 1586, 1587, 1593. 1595, 1600, 1610, 1W5, 1655, 1659, 1662, 1665, 1696, 1708, 1728. 
Similar propositions have been introduced in each of the Congresses since 1889. 

* Mason's Veto Power, p. 120. 



134 AMERICAN HISTORICAL ASSOCIATION. 

of August, 1882. The amendment was first presented two 
days later, and was reintroduced in each of the two succeed- 
ing Congresses.^ A few of the resolutions in regard to the 
veto of items in appropriation bills, previously cited, also con- 
tained the provision that such items could only be passed over 
the veto by a similar majority of each House. Mr. liandall of 
Pennsylvania was the first and most zealous advocate of this 
reform.^ 

59. LIMITATIONS UPON THE APPOINTING POWER OF THE PRESIDENT. 

The two allied powers of the President, namely, of appoint- 
ment and removal, the first of which is constantly used, have 
naturally given rise to much dissatisfaction and friction be- 
tween the legislative and executive departments, so that it is 
not surprising that several amendments have been proposed 
to place limitations upon his exercise of these powers.** 

In 1808 Mr. Hillhouse proposed a radical change in the power 
of appointment. His amendment provided that all the more 
important officers should be appointed by the President, by 
and with the advice of the Senate and House of Kepresenta- 
tives. Congress could, by law, vest the appointment of such 
officers as they may think proper, either in the President, by 
and with the advice of the Senate, or in the President alone, 
or heads of Departments or courts of law.* 

In addition, there have been several resolutions presented 
to vest the appointment of certain executive officials in Con- 
gress. In 1818 Mr. Lewis of Virginia introduced an amend- 
ment depriving the President of the power of appointing his 
own Cabinet ministers, and vesting the appointment in the 
Senate and House by joint ballot.* In 1828 Mr. Barbour, also 



I Ibid., p. 138, App., No8. 1565, 1594, 1610, 1655. These provided fortbe submission of every 
order, resolution, or vote, to which the concurrence of the SenEto and House may be 
necessary, except on questions of adjournment, to the President for his consideration, 
thus extending the veto power of the Pre Ident to concurrent resolutions. 

« App., Nos., 1659, 1665. 1708. 

" The conclusion of the Federal Convention, reached at the last moments, to confer upon 
the Senate the power to confirm appointments (Art. II, sec. 11, cl. 2), has enabled that body 
to encroach upon this power of the President more successfully than upon any other. 
Wilson foresaw the result of this provision, for ho declared: "The President will not be 
the man of the peoi)Ie, but the minion of the Senate. He can not even appoint a tide- 
waiter without it." On the other hand, for the influence the President is able to exert 
over legislation, see comments of Senator Benton, Thirty Years' View, i, 86; Story, ii, 
337-347. 

* No law vesting the power of appointment shall be for a longer term than two years. 
App., No. 395: post, 60. 

* App., No. 477. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 135 

of Virginia, presented an amendment to exclude the President 
from appointing or removing the principal Treasury oflScers.^ 
In 1830, and again in 1838, Mr. Underwood of Kentucky, in con- 
nection with the amendments regulating the removal of officers, 
submitted an article which made provision for making the 
Treasury Department independent of the Executive, and vest- 
ing the appointment of the Secretary of the Treasury and 
other hnancial officers in Congress.^ This change was without 
doubt suggested by President Jackson's manipulation of the 
Treasury Department in his controversy with the United 
States Bank. A somewhat similar amendment, introduced 
by Clay, in 1841, received extended consideration.^ It was 
caused by the open hostility existing between Tyler and the 
Whigs; 

The amendment presented by Mr. Taliaferro of Virginia, in 
1839, which is again considered under the subject of removals, 
vested all the appointments, except such as are otherwise 
directed by law in the Senate, by a viva voce vote on nomina- 
tion of some Senator, and required Congress to provide for and 
to regulate by law all that concerns the removal from office and 
the filling of vacancies.^ Other amendments in regard to the 
appointment of officials were offered in this same year.' In 
1842 Mr. Underwood again presented his amendment, but this 
time it included the Post Office Department, against which 
charges had been made, as well as the Treasury Department.® 

Mr. Ashley, who seemed deeply convinced of the necessity 
of subordinating the executive and judicial authority to the 
legislative, in connection with other amendments designed to 
accomplish this end,' proposed in 1869 the election of the Cab- 
inet officers by C(mgress in joint convention, for the term of 
six years, one to retire each year. The other appointments 
should be made as follows: "Each member of the executive 
council, including the President, shall, by and with the advice 
of the Senate, appoint all officers for his department." ^ 



• App.,No. 586. 
"App.,No8. 649-651. 
»App.,No.7l7. 

• App., Xo. 692. 

» Mr. TalUnadge of New York, App.. No. 695. 

• App., No. 719. 

' ' See ante, par. 58; peat, pars. 63, 72, 73. 

• App., No. 1315b. £ach Cabinet officer could be reraovecl by concurrent vote of the 
Honne and Senate. The executive council sliould keep a record of each meeting and all 
official transactions, which shall be subject to examination by a committee of the two 
Honaee. 



136 AMERICAN HISTORICAL ASSOCIATION. 

Numerous amendments presented in recent years, either con- 
ferring the election of certain of the civil officers upon the 
people or vesting the appointment in another power, are treated 
elsewhere.' 

60. REGULATION OF THE POWER OF REMOVAL. 

In addition to the amendments limiting or entirely depriving 
the President of the i)ower of appointment, there have been 
presented a number of resolutions regulating the removal of 
officials. In the First Congress Mr. Tucker proposed an 
amendment giving the President the power ** to suspend any 
person from office whom he shall have reason to think unfit."* 

The amendment presented by Mr. Hillhouse,in 1808, besides 
making provision for new regulations to govern the appoint- 
ing power, required the consent of both the Senate and the 
House before any removal should be made.^ 

The introduction of the "spoils system" into national poli- 
tics with the accession of Jackson to the Presidency, led to the 
censure of the President by the National Eepublican members 
of the Senate in 1829, but did not result in the presentation of 
any amendments until 1835. In that year Mr. Vance of Ohio 
introduced an amendment, by the terms of which the President 
was prohibited from removing any person from office without 
the concurrence of the Senate.^ Webster maintained that the 
Senat-e already had full right to regulate the removal of offi- 
cers, for the decision of 1789 was not in harmony with the Con- 
stitution.* 



•Post, para. 61, 64. 

' App.. No. 207. The qaestion of removal came up firat in the First CoDgresa in connec- 
tion with the hill creating the office of Secretary of the Treasury. By the caating vote 
of the Vice-President the hill passed with a provision allowing the removal hy the Presi- 
dent alone. The m^ority were prohahly influenced hy respect for the ezxilted character 
of Washington Story, ii, pp. 351-354, notes; Davis, Am. Cousts., p. 492. 

' App., No. 396. In the criticism found among John Adams's papers npon Hlllhonse's 
amendments was the following referring to this proposition and the one in regard to the 
appointing power: "It reduces the President's office to a mere Doge of Venice; a mere 
head of wood ; a mere tool of the aristocratic branch— the Senate." Works, Vol. vi, p. 534. 
See ante, par. 47. 

* App., No, 639. 

» Speech of February 16, 1835. Works, iv, 179 et seq. Calhoun took a similar position. 
Works. I. 345, 369. The Federalist, No. 77, mainlined the same as now asserted by 
Webster. Madison, however, favored giving the power to the President alone. Story, ii. 
353-354; Kent, i, 289-290; Riittiman, Das Nordamerikanische Bundesstaatsrecht (Zurich,- 
1867), I, 280; L. Dupriez, Les Ministres dans Les Frincipaux Pays D'Europe et D'Ame- 
rique, ii, 40 (Paris, 1883). 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 137 

Another proposition offered by Mr. Taliaferro of Virginia, in 
1839, declared that the power of the President to remove from 
office and to fill vacancies thus created is not a power conferred 
on him by the Constitution, either expressly or by necessary 
construction of any power delegated to him. The amendment, 
however, prescribed as one of the duties of the President the 
commissioning of all the officers to be appointed under the Gov- 
ernment, expressing in each commission the term of service of 
the office.! 

In 1836, and four times thereafter, Mr. Underwood of Ken- 
tucky presented an amendment which provided that the terms 
of all offices except those provided for in the Constitution, and 
the mode of removal from office, should be regulated by 
Congress.' 

The general assembly of Kentucky, in 1842, proposed an 
amendment to confine removals from office by the President to 
heads of Departments and those employed in the foreign serv- 
ice.^ In the sixties the Senators from Kentucky were very 
solicitous in regard to the power of removal. In 1863 Senator 
Davis offered an amendment limiting the President's power to 
remove from office, in the case of all those officers in whose 
nomination the advice and consent of the Senate is required, 
until the next session of the Senate only, unless it should 
approve of such removal.* In the next year Senator Powell 
proposed as an additional article to the thirteenth amendment 
a provision to permit the President to remove at pleasure the 
principal officers in the Executive Departments and all per- 
sons connected with the diplomatic service. All other officers 
of the Executive Departments might be removed at any time 
for cause, by the President or other appointing power, but 
when so removed the removal should be reported to the Senate 
with the reasons.^ 

It is noteworthy that the ^^ tenure-of-office act" of 1867^ 
accomplished the object aimed at by some of these amend- 
ments; but this ac;t was partially repealed in 1869, and wholly 
repealed in 1877, so that at the present time the full power 
of removal has been restored to the President. In 1882 an 



» App., No. 692. 

«In 18:J8, 1842, 1849, 1850, App., Nos. 651, 677, 722, 755c, and 762. 

•App., No. 728. 

* App., No. 979. 

•App., No. 996. 

•Called oat by the hostility of Congro»8 to Johnson. 



138 AMEBICAN HISTORICAL ASSOCIATION. 

amendment was presented the object of which has practically 
been accomplished by the above-mentioned act of 1877.^ 

These propositions were but an episode in the history of the 
amending power, for upon the decline of the influence of Jack- 
son the attempts to amend the Constitution in these particu- 
lars, with the exception of the instances noted, end. 

For the sake of completeness, it is necessary to refer to a few 
additional propositions in regard to the tenure of oflice. An 
amendment introduced in the Senate of the First Congress 
reveals the fear of some of a revival of the hereditary system. 
This interesting amendment was as follows: "That* no man or 
set of men are entitled to exclusive or separate public emolu- 
ments or privileges from the community but in consideration 
of public services, which not being descendible, neither ought 
the offices of magistrate, Senator, or judge or any other public 
offices to be hereditary.'' ^ 

Within recent years seven amendments have been proposed 
relative to fixing the tenure of civil officers of the United 
States. Six of these provide for a four-year term for all such 
officers except judges and heads of Departments and those 
whose duties were temporary in their nature, unless a longer 
term was fixed by law.^ The remaining one proposed a five- 
year term.* 

61. CIVIL SERVICE REFORM. 

In addition to the propositions restricting the appointment 
to office of members of Congress, electors and certain other 
persons,* one curious attempt was made, previous to the civil 
war, to prevent certain abuses incident to the patronage system 
by means of an amendment to the Constitution. This amend- 
ment was proposed by Mr. Quincy of Massachusetts, January 
30, 1811. It provided that "no person standing to any Sena- 
tor or Representative in the relation of father, brother, or son, 

' App., No. 1541. It conferred npon the PreHident power to remove headn of Depart- 
xnentB and bureaus, and all persons connected with the diplomatic service. All other 
officers could bo removed when their services were unnecessary, or for cause, but the 
reasons should be reported to the Senate. In 1886, owing to some friction between Pres- 
ident Cleveland and the Senate, an amendment was proposed to give the election of 
Senators to the people, because '' The Senate, a subordinate branch of the legislative 
department, * *  is now attempting to interfere with the x>ower confided solely to 
the President of removing officials " Preamble to App., No. 1674. See ante, p. 61, note 7. 

» App., No. 270. 

* App., Noe. 1344, 1376. 1405. 1517, 1532, elected by the people; No. 1547 appointed by acorn* 
mission. See post, par. 61. 

* App., No. 1566, ap)iointed by a house of electors. Post, par. 61. 

* Ante, para. 12, 21, 55. 



l>ROPOSED AMENDMENTS TO THE CONSTirUTlON. 139 

by blood or marriage, shall be appointed to any civil oflfice 
under the United States, or shall receive any place, agency, 
contract, or emolament from or under any Department or office 
thereof.^ ^ 

Mr. Wright moved to amend the same by adding a clause 
requiring 'Hhat each member of the Senate or House of Rep- 
resentatives, when he takes his seat, file a list of his relations 
precluded by the said resolation." No farther attempt, in 
addition to amendments referred to elsewhere, was made to 
counteract the system of rotation in office until 1864. In that 
year Senator Powell of Kentucky included in his article, to 
change the method of electing the President, a paragraph 
which declarexi that *^it shall not be deemed compatible with 
the duty of a President habitually to use the patronage of his 
office for the special advantage of any particular political 
party, or suffer the patronage of any subordinate office so to 
be used.'^* 

Not until the agitation for the inauguration of reform in the 
civil service was well under way was another amendment 
suggested. In 1876 Mr. Williams of Michigan proposed a civil 
service reform amendment. It prohibited Senators and Rep- 
resentatives "from soliciting appointments to or removals from 
office.'' It further made provision for the creation of a commis- 
sion of not less than five or more than nine which should have 
absolute advisory and confirmatory power in regard to appoint- 
ments to and removals from office. Congress, however, was 
allowed to provide for the election of certain civil officers by 
the people of their respective States, districts, or locality, sub- 
ject to removal by the civil service commission.^ 

Three years later, Mr. Turner introduced a resolution pro- 
loosing that the Committee on Civil Service Reform in both 
branches of Congress should " be authorized and directed to 
inquire into and report upon the propriety of curtailing by 
constitutional amendment and by law the vast, corrupting, 
and dangerous patronage of the executive department."* 

In the Forty-seventh Congress there were two amendments 
proposed depriving the President of a large share of the power 
to make appointments, by vesting this power in the one case 
in a commission, in the other in a house of electors. The first 
of these provided for the nomination and appointment of all 
public officers, except the heads of the Executive Departments, 



iApp.,No.403. >App.,No.l028. SApp.,No.l417. < App., J^o. liSla. 



140 AMERICA.N HISTORICAL ASSOCIATION. 

by a commission of three, composed of two commissioners 
appointed by the President — with the confirmation of the 
Senate — and the head of the Executive Department to which 
the business of the appointees belonged. Such appointments 
were to be temporary until confirmed by the Senate.* The 
other resolution proposed the creation of a house of electors 
to be composed of one member from each State, elected by the 
people of the respective States, for the term of six years. 
Congress was to designate "what officers shall be elected, 
examined, or confirmed by the house of electors, and who shall 
make appointments for minor officers."* 

Others have proposed as a remedy for the e\ils of the 
"spoils system" the making of many of the civil offices elect- 
ive, thus rendering them in a large measure independent of 
the coercion of the Administration in power at Washington.' 

62. MILITARY POWERS OF THE PRESIDENT. 

Among the amendments proposed by the ratifying conven- 
tion of the State of New York was one forbidding the Presi- 
dent to command jin army in the field in person, without the 
previous desire of the Congress.* In the First Congress Mr. 
Tucker, doubtless influenced by this proposal, attempted to 
have the words "Commander in Chief" struck out of the Con- 
stitution,* and the phrase "have power to direct the opera- 
tions" inserted in their place.^ No similar proposition has been 
presented in either of the four wars of the United States.' 

63. THE PARDONING POWER OF THE PRESIDENT. 

The New York convention which ratified the Constitution 
also proposed an amendment prohibiting the President grant- 
ing pardon for treason without the consent of Congress, but 



' App., No. 1547. The conimiHHion also had power of removal, subject to approval of 
the Senate. Their term •was to be four years, subject to removal by the President with 
consent ot the Senate. 

■App., No. 1566. This resolution also provided for the election of iM)8tma8ters by the 
people of the respective postal dintricts, subject to the confirmation of the house of elect- 
ors or Postniaster-Oeneral, as Conj^resH shall desijt^nate. The President was still to have 
the power of removal of any officer in the ci\ il service for any reason except political. 

"See post, par. 64. The preamble of No. 1427 recites the evils and dej^radaticn of the 
system whereby one hundred thousand officers of the United States are subject to the 
coercion of the Administration in power, required to act, vote, and contribute money in 
accordance with the oentral will, by means of which caucuses and elections are controlled. 

*App.. No. 67. 

•Art. II, Sect 2. 

•App., No. 206. 

' See comment on the power of the President to force a war upon the country, written 
at the time of the Mexican war. Niles' Kegistor, vol. LXXii, pp. 16C>, 166. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 141 

permitting him to graut reprieves until the case was laid before 
Congress.^ 

Only one other amendment has been proposed on this sub- 
ject. This was suggested in 1869 by Mr. Ashley, who arraigned 
President Johnson for the wholesale use of the pardoning 
power. He suggested that the approval in writing of a major- 
ity of the Cabinet should be required before the President 
could grant reprieves or pardons, and that no general amnesty 
or pardon to persons who may have been engaged in rebellion 
against the Government should be declared until the Congress 
had given its consent.^ 

64. ELECTION OF EXECUTIVE OFFICIALS. 

There have been twenty-eight propositions presented to 
Congress to amend the Constitution relative to permitting 
the election of postmasters and other local officers by the 
people.^ All of these have been introduced since 1848, and 
fifteen since 1881. The first time such a practice was sug. 
gested was in 1848, when Mr. Wentworth of Illinois offered 
a resolution to require the Committee on the Judiciary to 
inquire whether any alteration of the Constitution was neces. 
sary in order to refer the election of either postmasters, or 
land officers, or revenue officers, or officers of any other kind, 
now appointed by the President, by and with the advice of 
the Senate, directly to the people. The resolution was agreed 
to, but the committee does not appear to have ever reported. 
Two other amendments were submitted previous to the civil 
war — one upon the election of deputy postmasters, the other 
upon the election of postmasters and collectors. 

The first amendment on this subject after the war was 
introduced in 1866 by. Mr. Broomall. It proposed that assess- 
ors and internal-revenue collectors should be elected by the 
people.* A proposition for a popular election of some one or 
more classes of Federal officials has been presented in every 
Congress since 1871 down to the Forty-ninth Congress. Many 
of these, in addition to postmasters and revenue collectors, even 
provided that marshals, district attorneys and all other United 
States officials whose duties require them to live in the State, 

1 App., No. 06. 
* App., No. 13150. 

•App., Nos. 751, 768, 776, 1193, 1331, 1334, 1344, 1376, 1379, 1405, 1417, 1427, 1444, 1617, 1626, 1527, 
1532, 1546, 1554, 1556, 1558. 1566, 1582, 1598, 1618, 1646, 1658, 1664. 
« App., No. 1193. 



142 AMERICAN HISTOBICAL ASSOCIATION. 

except judges, should be elected by the people of the State, 
district, or localitj^ where they perform their duties.^ 

In hariuouy with the expedient which has been made use of 
in recent years by some of the Eepresentatives as a means 
of settling the vexed question of patronage, Mr. Grout of 
Vermont introduced, in 1886, an amendment requiring the rec- 
ommendation of a majority of voters for the appointment of 
postmasters.* 

The efficiency of the present postal system would probably 
be impaired by conferring the election of postmasters upon the 
people. Not only would popular elections be likely to destroy 
the uniformity of the system, but it would tend to cause the 
officials to feel more responsibility to the local electors than to 
the central office at Washington, even though they were sub- 
ject to removal by the head of the Department. 

85. PUNISHMENT OF OFFICIAL MISCONDUCT. 

Two amendments only have been introduced on this subject. 
The first of these — presented in 1838 by Mr. Southgate of Ken- 
tucky — provided that any officer convicted of embezzling pub- 
lic money should be declared forever thereafter incapable of 
holding any office of honor, trust, or profit under the Govern- 
ment, or of exercising the right of suffrage.^ 

The second was submitted in 1876 by Mr. Lord of New 
York. It declared that ^*the Congress shall enact suitable 
laws for the prevention and punishment of official misconduct 
and to insure official accountability," and further stipulated 
that any person convicted of bribery or converting the public 
money should not be pardoned, and should be disqualified 
from holding any office under the United States.^ 

66. STATUS OF THE EXECUTIVE. 

In concluding this very important subject, it may be well to 
see what effect these proposed amendments have had on the 
position of the Executive. It is remarkable that among the 
multiplicity of propositions there has been no important move- 
ment to change the form of the Executive. With one excep- 
tion, the only ones remarked were the attempts made in the 



>App., No8. 1331, 1334, 1376, 1379, 1405, 1417, 1427, 1526, 1532, 1546, 1564, 1558, 1598, 1618. Some 
included even judges. Post, par. 69. Must uiade provision for removala for oaaae either 
by the President or as Congrssa may by law direct. 

«App., No. 1664. See also No. 1566, ante, par. 61, 

«App.,No.688. 

«ApPmNo.1420. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 143 

critical days just before the civil war by Southern mcD who, for 
the purpose of retaining their inflaence in this department of 
the Government, proposed that a dual Executive or a council 
should be substituted for the single Executive. 

The question of the method of electing the President has 
already been discussed. The plans have been so various as to 
preclude the probability of any change, although it has long 
been recognized that reform is desirable. There is a growing 
conviction that the present system should give way to one 
which should more readily express the will of the majority of 
the people. The difficulty has been to find a plan free from 
flaws and then to unite the country in its support. In recent 
years more attention has been given to attempts to secure an 
amendment fixing the term of President at six years and 
making him ineligible to reelection than to changing the 
method of election. 

Although there have been several attempts to deprive the 
President of certain of the powers conferred upon him by the 
Gonstitution, they have all, fortunately, failed. On the other 
hand, the recent movement to give the Executive power to 
veto items in appropriation bills is deserving of success, inas- 
much as it would tend to check extravagant legislation. 

There seems to be no need of an amendment contemplating 
reform in the civil service. Already it is sufficiently within 
the power of Congress to "protect the service, and no amend- 
ment is likely to add force. 

Of the five hundred amendments relative to the executive 
department which have been submitted, eleven have passed 
one House and one both Houses of Congress, being immedi- 
ately ratified by the States. 

In a word, then, it may be said that the status of the Execu- 
tive is at the present time stable and strong. The tendency 
to-day is to increase rather than to diminish his power, and to 
make the office more independent of Congress.* 



1 f oeter Com. on the Const., i, 305. 



CHA.PTEE IV. 

AMENDMENTS AFFECTING THE FORM OF THE JUDICIARY 

DEPARTMENT. 

67. STATUS OF THE JUDICIARY. 

InasTiiucli as the Constitution contains less detail in regard 
to the judiciary department than upon either of the other 
departments of the Government, the opportunity for change 
has been slight, and hence comparatively few attempts have 
been made to alter the provisions of the Constitution. The 
judiciary has been also the most conservative branch of the 
Government, and has almost entirely refrained from encroach- 
ing upon the prerogatives of either of the other departments, 
hence it has been the object of attack only in exceptional 
cases.^ Most of the attempts to change the judiciary, as in the 
case of the legislative department, were made in the earlier 
years of our history under the Constitution. First appeared 
the movement to limit the jurisdiction of the Federal courts, 
which finally culminated in the eleventh amendment, forbid- 
ding the United States courts entertaining a suit instituted 
by a citizen of a State against a State, ^ext came the only 
considerable attack on the judiciary, in the propositions tor 
the removal and impeachment of judges. Various suggestions 
have been made to render judges ineligible to other offices 
and thus keep the court free from political entanglements. 
Attempts have been likewise made from time to time to secure 
the appointment of the judges for a term of years, and hence 
to enable the popular will more readily to control their action.^ 
The friction caused by the disputes between the States and 
the General Government called out several propositions for 
the creation of some tribunal other than the Supreme Court to 
decide such cases. Each of these subjects will be considered 
more in detail in the present chapter. 

88. COMPOSITION AND NUMBER OF JUDGES. 

The Constitution made provision in broad terms for the estab- 
lishment of the judicial power ^ and left Congress to create by 



•Bryco, 1,267-271. 

■These wen; doubtlcBB suggested by the growing practice iu the States. 
•Art. Ill, sec. 1. 
144 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 145 

law the saperior courts, and to fix the number of judges of both 
the Supreme and inferior courts. Accordingly, on September 
24, 1789, Congress organized the judicial system of the United 
States. The Supreme Court was constituted with a Chief Jus- 
tice and five associates. From time to time as it became neces- 
sary to extend the jurisdiction of the circuit courts, additional 
judgeships were created. In 1807 Congress added an associate 
judges in 1837 two more, and one in 1863.^ Inasmuch as it has 
been possible to change the composition of the court by simple 
legislation, there have been but three attempts to secure a con- 
stitutional amendment on this subject. Two of these were reso- 
lutions in regard to judges of the Supreme Court and other 
courts, introduced by Mr. Williams of Pennsylvania, at two 
different times during the year 1867.^ They were doubtless 
suggested by the trouble existing between Congress and Presi- 
dent Johnson over the reconstruction policy. There was a 
vacant judgeship in the Supreme Court in consequence of the 
death of Judge Catron in 1865. Congress was unwilling to 
have the President fill the vacancy, inasmuch as it was proba- 
ble that the Supreme Court would be called upon to decide in 
regard to the constitutionality of the reconstruction acts within 
a few months after the introduction of the last of these amend- 
ments. Congress passed a law over the President's veto ^ for- 
bidding the filling of any vacancy until the number of associate 
judges should be reduced to six. Only one other amendment 
has been proposed on this subject. This was introduced by 
Mr. Whyte of Maryland, and proposed that the following sec- 
tion be added to the third article: "The Supreme Court of the 
United States shall consist of a Chief Justice of the United 
States and associate justices, and of whom shall con- 
stitute a quorum."* The number of the judges was left m 
blank, to be filled in according to the wisdom of Congress, but 
Mr. Whyte desired to place the number at thirteen. This was 
intended to relieve the judges from the pressure of work rest- 
ing ux)on them, the court, owing to the rapid accumulation of 
cases, being months behind in its work.^ 



* By act of 1860 thenamber of the Supreme Court is fixed at one Chief Justice and eight 
associates. 

sApp., Nos. 1208, 1214. Text not given. 

 Mason's Veto Power, App. A, No. 67. 

*App., No. 1516. 

*The Fifty-flrst Congress passed a law establishing ne^ courts and oreating fifteen 
new judgeships, to remedy this matter. 



H. Doc. 353, pt 2 10 



146 AMERICAN HISTORICAL ASSOCIATION. 

There is no apparent need of constitutional amendments to 
secure the control of Congress over the judiciary. The legis- 
lative department has power to organize or to disorganize 
courts at will but has only rarely made use of its power. The 
need, if any, is for an amendment to render the judiciary still 
more independent.^ 

69. CHOICE OF JUDGES. 

In accordance with the provision of the Constitution, judges 
of the Supreme Court and the inferior courts are appointed by 
the President "by and with the advice and consent of the 
Senate."* During the first ninety years of our history under 
the Constitution only four amendments have been proposed 
contemplating any change in the choice of judges. The first 
of these was introduced by Senator Hillhouse in 1808.^ It 
provided that the api)ointment of judges of the Supreme 
Court and certain other officials should require the ratification 
of the House of Representatives as well as the Senate. Ten 
years later Mr. Lewis of Virginia presented an amendment 
which proposed to reduce the power of the President materi- 
ally, as by its terms all appoiutments to offices and vacancies 
*^in the judiciary of the United States" were vested in the 
Senate aud House of Representatives on joint ballot.* Xo 
further amendments on this subject were proi)osed for nearly 
fifty years, when, in 1867, and again in the following year, Mr. 
Cobb, of Wisconsin, introduced a similar proposition for the 
choice of the judges of the Supreme Court. In addition, Con- 
gress should prescribe by law by what mode judges of the 
inferior courts of the United States and Territories should be 
appointed or elected.^ 

Within the last decade, in harmony with the general tend- 
ency toward popular election of Senators, United States mar- 
shals, district attorneys, revenue collectors, and postmasters, as 
shown by various resolutions, there have been a few attempts 
to secure the election of the judges of the inferior courts of the 
United States by popular vote.^ The first of these was intro- 
duced by Mr. Voorhees of Indiana. It made provision for 



» Foster, Com. od Const., pp. 303-304. 

* Art. II, sec. 11, cl. 2. 

s App., No. 395, ante, par. 59 
<App.,No. 476. 

* App., Noa. 1196, 1227 ; also limited term to eight years. See post, par. 72. 

* Probably suggested by the system in use in a large number of the States— at present 
thirty-one — of electing the State judiciary by i)opular vote. Bryce, i, 505; Hitchcock, 
Am. state Coasts., 47-00. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 147 

the popular election of judges of the United States district 
courts in sucli manner as tbe legislatures of the States should 
provide by law, as well as for postmasters, revenue collectors, 
marshals, and district attorneys.^ 
Two similar resolutions were introduced within the next two 



years.^ 



70. JXTDQBS TO BE INELIGIBLE TO OTHER OFFICES. 



Two of the State conventions that ratified the Constitution^ 
incorporated into the series of amendments which they recom- 
mended a proposition prohibiting a judge of the Supreme 
Court '* holding any other office under the United States, or 
any of them." This restriction without doubt was intended 
to prevent Executive influence over the judiciary, and to keep 
the judges free from prejudice in regjird to any political or 
diplomatic question upon which it might be necessary later for 
them as judges to render a decision. This amendment was not 
suggested in the First Congress; and in 1794: Chief Justice Jay 
was appointed as a special envoy to England. Some objection 
to his appointment seems to have been made on the ground of 
his being the Chief Justice, which found expression in the 
resolution of the legislature of Virginia* proposing an amend- 
ment to the Constitution restricting judges from holding any 
other office or api)ointment whatever." Five years later two 
similar amendments were presented. The first of these was 
submitted by Senator Pinckney of South Carolina, February 
3, 1800. It provided that neither the Chief Justice nor any 
judge of the United States should hold any other appointment 
or office "during his continuance in office as a judge of the 
United States, and that the acceptance of such other office 
shall vacate the appointment of any judge accepting the same."^ 
In ten days Mr. Livingston of Kew York introduced the other 
proposition. It forbade the appointment of a United States 
judge during his continuance in office or within six months after 
he may have resigned the same, to any other than a judiciary 
office under the United States.^ These were without doubt 
called out by the appointment in the i)revious year by Presi- 

>App., No. 1528. 

> App., No8. 1545, 1582. One by Seuator Goorge also provided for a foarteeu-year term 
and removal for disability. See pont, par. 72. 

* New York and Rhode Island. App., Niwt. 72, 119. The Kbode Island proposition also 
proposed that Fe<leral officers slionld be incapable of holding State offices. 

* App., No. 327d. 

•App., No. 335. McMaster, il, 474. 
•App.,No.337. 



148 AMERICAN HISTORICAL ASSOCIATION. 

dent Adams of Chief Justice Ellsworth as one of the three 
commissiouers to France. The business of the Supreme Court 
at this time was so small that the temporary absence of the 
Chief Justice would not have seriously interfered with its 
work. 

Some of the resolutions introduced in more recent years, pro- 
posing amendments either in regard to the judiciary or the 
election of President and Vice-President, have placed restric- 
tions upon the eligibility of the Chief Justice, and in some 
ca«es upon all of the judges of the Federal courts, to other 
offices. The one introduced by Mr. Ashley, in 1869, was the 
most comprehensive and restrictive. He proposed rendering 
a Federal judge ineligible to any office under the ^N^ational 
Government.* Mr. Powell included in his unique amendment, 
for the election of President by the electors out of their own 
number, a provision that no office should be incompatible with 
that of an elector except the office of Chief Justice of the 
United States.'^ An amendment suggested by Senator Poland, 
in 1872, stipulated that no judge of any court of the United 
States should be chosen President or Vice-President within 
two years after the termination of his judicial office.^ 

The amendment reported from the House Committee on Elec- 
tions in 1874, as well as Mr. Smith's substitute proposition, both 
of which made provision for the canvassing of the returns of 
the Presidential election by the Supreme Court, rendered a 
person who lias been a justice of the Supreme Court ineligible 
to the office of President.* A similar prohibition has been 
proposed on three other occasions.* 

The Edmunds resolution, as reported by the Committee on 
the Judiciary in 1870, which also i)rovided for the canvassing 
of the returns and for the decision of contested-election cases 
by the Supreme Court, was less stringent. It stipulated that 
justices of the Supreme Court should be ineligible to the Presi- 
dency until two years after the expiration of the term of serv- 
ice.*^ It was subsequently amended so that a judge of the 
Supreme Court was debarred from receiving appointments to 



> App., No J315d. In his BiMjech Mr. Ashley said, " One third or more (of the members 
of the Supreme Court) are crazed with the glitter of the Presidency.'' Globe, App., For- 
tieth Congress, third Hossion, p. 210. 

» App., No. 1026. An te, par. 47. 

* App.. No. 1351. This amendment ul»o ma<le Senatoi-s and Representatives ineligible for 
the Tresidency during their term. 

* App., No. 1386. 

* App., Nob. 1345, 1474, 1482. 
•App., No. 1423. 



I>ROPOSED AMENDMENtS TO TfiE CONSTITUTION. l49 

any office under the United States until four years next after he 
had ceased to be such justice. 

71. KEMOVAL OF JUDGES-IMPEACHMElfT. 

The framers of the Constitution, in order to secure the inde- 
pendence of the judiciary, very wisely provided that the judges 
should hold their office during good behavior, ^ hence they could 
be removed only by impeachment. The ratifying conyention 
of New York appears to have been dissatisfied with that pro- 
vision of the Constitution which vested in the Senate the sole 
power to try impeachmtmts,* for it included in the series of 
amendments which it recommended an elaborate article on 
this subject. It proposed that the court for the trial of im- 
peachments should consist of the Senate, the judges of the 
Supreme Court of the United States, and the first or senior 
judge of the highest court of general and ordinary common law 
jurisdiction in each State, a majority of those present being 
necessary to convict.-* In the series of amendments proposed 
by Mr. Benson of New York, in 1791, for the creation and con- 
duct of general judicial courts, were articles providing that 
judges of this court might be impeached by the most numer- 
ous branch of the State legislature, as well as the House of 
Representatives, the impeachment to be tried by a court estab- 
lished by an act of Congress, to be held in each State, and to 
consist only of United States Senators, judges of the United 
States Supreme Court, and judges of the general judicial 
courts. A two-thirds vote was necessary for conviction.* 

Immediately upon the failure of the Senate to convict Judge 
Chase in the celebrated impeachment trial in 1805,' John Ran- 
dolph, who had been one of the House managers of the trial, 
in his discomfiture, proposed an amendment so as to make 
United States judges removable by the President on the joint 
address of both Houses of Congress.^ 

1 Art. Ill, sec. 1. 

« Art. I, sec. 3, el. 6. 

» App., No. 70. It farther gave Congress power to pass the necessary laws for the estah- 
lishment and regulation of this court. This was modeled after the provision in her 
constitution. 

* App., Nob. 308, 307, 308. 

• For Jefferson's connection with the attempt to impeach Chase, see Wiiloughhy, The 
Supreme Court, pp. 90-02 ; Morse, Jefferson, pp. 262-203. His great disappointment is seen 
in his letters. "Impeachment is not even a scarecrow." Works, vii, pp.266; see also 
ibid., pp. 134, 192, 216. For account of trial see Foster, Com. on Const. I, pp. 533-542; 
Adams, XT. S., ii. Chap. x. 

•App., No. 366. Suggested probably by the English 8yst<?m. See Jefferson's Works, 
VII, p. 256. A similar provision in five of the State constitutions of the Revolutionary 
period. Davis, Am. Consts. pp. 506, Sno. See ante, par. 29, for amendment introduced by 
Nicholson reflecting on the judicial fairness of the Senate. Also Bryce, r, p. 268. 



150 AMERICAN HIStORiCAL ASSOCIATION. 

The resolution was referred to the Committee of the Whole 
by a vote of C8 to 33. In the following year he reintroduced 
this amendment and it received considerable discussion.* Be- 
tween the years 1S07 and 1812 nine amendments were presented 
on the removal of judges,^ Among these were the resolutions 
of the legislatures of the States of Vermont, Massachusetts, 
and Pennsylvania,^ but in Massachusetts the next legislature 
revoked and annulled the instructions of the preceding year.* 
There was some difference in these propositions as to the 
majority required to pass such a joint address. Some, as 
that proposed by Mr. Wright of Maryland, simply recjuired 
a majority of the members present,^ others required a two- 
thirds'* or a three-fifths vote of each House,'' while the Massa- 
chusetts proposition called for a majority of the House of 
Representatives and two-thirds of the Senate.^ The proposi- 
tion submitted by Mr. Maclay also provided that on all trials 
of impeachment '^ a majority of the Senate shall be competent 
to conviction."^ This was probably suggested by the fact that 
a majority vote had been secured on some of the articles in 
the trial of Judge Chase, but all fell short of the two-thirds 
essential to convict. Two additional amendments in regard 
to the removal of judges were presented, one in 1816 by Mr. 
Sanford of New York, the other in 1822 by Mr. Holmes of 
Maine. The former provided for the removal of any judge of 
the Federal courts whenever tlie President and two-thirds 
of both Houses of Congress should consider that such action 
would promote the public good.^° The latter was similar to 
Randolph's proposition." 

With these amendments the only considerable attack on the 
personnel of the judiciary practi(»ally ends, although proposi- 
tions have since been submitted at two widely separated periods 



' App., No.371. 

* App., No8. 380, 381, 382, 383, 385, 389, 398, 402, 405. The popular branch of the lej^islatures 
of Yirj^inin and Tcnncsaoe ap])roved of this ameudment. History of this attack, we 
Adams, V. S., vol. iv, pp. 204-207. For reasous which induced presentation of Xo. 405 
<preHent(Ml by Adams), aco Niles' K<'gi.Hter, il, p. 109. 

* The legislature of Rhode Island requested their Senators and RepresentatiTea to 
oppose such an amendment. Annals of Congress, Eleventh Congress, second session, 
p. 631. 

* Rfsolves of Massachusetts, November 14, 1808. vol. xii, p. 12,817. 
« App.. No. 402. 

« Mr. Tiffin of Ohio. App., No. 380. 

' Mr. Campbell of Tennessee, App., No. 382. 

« App.. No. 389. 

•App., No. 383. 

«» App., No. 456. 

" App., No. 508a. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 151 

by two different members of Congress. Over a quarter of a 
century later Mr. Underwood of Kentucky twice proposed an 
amendment which declared that whenever a majority of the 
members of each branch of Congress should concur in an ad- 
dress to the President for the removal of any judge, his office 
should be vacant from the day of the delivery of such address.* 
In 1867 Mr. Williams of Pennsylvania twice renewed the 
proposal for the removal of judges by the President on the 
address of two-thirds of each branch of Congress.^ 

72. TKRM OF JUDGES— AGE LIMIT. 

The life tenure of judges was agreed to by the unanimous 
vote of the Convention of 1787. From time to time attempts 
have been made to limit this tenure either by prescribing an 
age limit or by fixing upon a definite term of years. The first 
of these propositions was introduced by Senator Pope of 
Kentucky, in 1809, in connection with a provision for the 
removal of judges. It proposed that judges should not con- 
tinue in office after attaining the ajre of 65.^ A second, sub- 
mitted by Mr. Eastman of New Hampshire, in 1826, fixed the 
age limit at 70.* Some ten years later a motion was made 
directing the Committee on the Judiciary " to inquire at what 
age judges shall be rendered incompetent to serve.''* An age 
limit was proposed for the last time by Mr. Ashley, in 1869, in 
connection with his amendment for a twenty-year term for 
judges. It required the retirement of judges at 70 years with 
a pension for life.® These resolutions were evidently intendod 
to guard against the chance of a judge remaining on the bench 
after he had lost his vigor and acumen. The object has been 
attained by the act of April 10, 1869, providing for a retiring 
allowance.' 

The second group of amendments on this subject was prob- 
ably suggested by a desire to bring the judges more directly 

' App., No8. 755b, 761. 

' App., Nos. 1208, 1214. A judge may be removed on the addreas of the leipslatiire in 
thirty-aix of the States. Bryce, i, p. 506; Davis, J. H. U. Studies, 3d series, pp. 506, 530; 
Foster, Com. on the Const., i, sec. 96, pp. 605-006. An amendment, proposed by Mr. George, 
in 1882, for the term and election of judges of the inferior courts, provided that the Presi- 
dent, with the consent of two-thirds of the Senate, may remove a Judge for disability. 
App., No. 1545. 

 App., "No. 398. 

* App., No. 575. 
» App., No. 638. 

* App., No. 1315d. Mr. Ashley said it was a sad sight to see '' one- third of its members 
Bleeping upon thn bench and dying with age, and one-third or more crazed with the 
glitter of the Presidency." Globe, App., Fortieth Congress, third session, p. 210; ante, 
par. 70. 

'Revised Statutes, 1878, sec. 714. 



I 



152 AMERICAN HISTORICAL ASSOCIATION. 

under x)opalar inflaence. Three of these amendments intro- 
duced in 1807-08, calling for the removal of judges,^ also 
stipulated that the judges should hold office for a limited term 
of years.^ This same proposition was not again introduced 
until the early thirties,^ when three resolutions proposing 
such a change were presentiCd/ Between the years 1839 and 
1844 Senator Tappan of Ohio offered at four different times 
an amendment limiting the judges to a term of seven yeara.^ 

Andrew Johnson was particularly zealous in advocating an 
amendment to limit the judges to a term of twelve years, one- 
third retiring every four years. This amendment was first 
presented by him in the early fifties, when a member of the 
House.*^ In 1860, when Senator, he recommended the same 
proposition in connection with his compromise amendment, and 
in this draft he provided that all the vacancies should be filled 
by persons one-half coming from slaveholding States and one- 
half from nonslaveholding States, so that the court should be 
equally divided between the two sections.^ In 1868, as Presi- 
dent, he again urged in a special message to Congress the 
necessity of limiting the term of judges to twelve years." 

In the later sixties there wese five aaditional propositions 
to change the tenure of judges to a stated term of years. Two 
of these resolutions proposed an eight-year term,^ two a ten, 
and the remaining one a twenty-year term.^^ In 1879 the amend- 
ment proposing a twelve-year term was again revived.*^ The 
preamble of this last resolution characterized ^'the life tenure 

1 Ante, par. 71. 

* App., Nos. 880, 383, 385. 

'Jefferson's fear and Jealousy of the power of the Judiciary was so aroused that in 1822 
we find him suggesting this means of controlling the court. In a letter to William T. 
Barry, of July 2, 1822, he writes: " Before the canker is hecome inveterate, before its 
venom has reached so much of the body politic as to got beyond control, remedy should 
be applied. Let the future appointment of Judges be for four or six years and renewable 
by the President and Senate. This will bring their conduct at regular periods under 
revision and probation and may keep them in equipoise between the general and special 
govemmeDts. * * * That there should be public functionaries independent of the 
nation, whatever may be their demerits, is a solecism in a republic of the first order of 
absurdity and iuconsi.Htency.*' Works, vu, p. 256, see pars. 71, 77. 

* App., Nos. 605, 608, 637, 638, 639. Another presented in 1848 by Hr. Thompson of Mis- 
sissippi, Ho. 752. 

* App., Xos. 700, 704, 731, 737. 

* App., Xos. 767, 772. 

' App., No. 815. Ante, p. 91. 
■App., No. 1232. 

*Both by Mr. Cobb of Wisconsin, App., Nos. 1196, 1227; also proposed oholoe by both 
Houses of Congress ; ante, par. 69. 
«• App., Nos. 1246, 1315d, 1320. 
» By Mr. Finley of Ohio, twice; App., Nos. 1478, 1494. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 153 

of office." as '*a relic of the Old World and iDcompatible with 
the genius and spirit of our republican form of government, 
placing public functionaries above a due sense of responsibility 
to the people." ^ 

73. COMPENSATION OP JUDGES. 

The ratifying convention of Virginia proposed an amend- 
ment which provided that the salary of a judge should not be 
increased or diminished during his continuance in office other- 
wise than by general regulations of salary, which should take 
place in a revision of the subject at stated periods of not less 
than seven years.* The Korth Carolina convention incorpo- 
rated this same recommendation into their series of proposed 
amendments,^ and it was likewise moved in the Senate as an 
additional article to the Bill of Eights, but it failed to pass.^ 
The only other change suggested to the provision of the Con- 
stitution on this subject was a verbal one, made in connection 
with an amendment on the removal of judges in 1809, by Mr. 
Pope.* 

74. ESTABLISHMENT AND JURISDICTION OF INPEftlOR COURTS. 

Circuit and district courts were created by Congress in 1789 
under the power in the Constitution to establish "inferior 
courts." The ratifying convention of Virginia proposed an 
amendment, which the North Carolina convention copied, the 
aim pf which was to take from Congress the power to create 
Federal courts inferior to the Supreme Court, other than courts 
of admiralty.® This same proposition was introduced in the 
Senate during the first session of Congress.'' Attempts were 
likewise made in the House to substitute for the words " tri- 
bunals inferior to the Supreme Court" wherever they appear 
in the Constitution, the words "courts of admiralty," thus 
accomplishing the same end which the Virginia amendment 
had in view.^ 

The New York convention also included in their series of 
proposed amendments a proposition limiting the jurisdiction 



• Life tenure forjudges in only retained in four of the States. Bryce, i, p. 508. 

• App., No. 45. 

• App., No. 98. 

« App., No. 287. 
•App., No. 398. 

• App., Nos. 39, 92. 
» App., No. 284. 

• App., Nos. 201, 208, 237. 



164 AMERICAN HISTORICAL A8S0CIAT10^f. 

of the inferior courts of the United States to the trial of cases 
of admiralty and maritime jurisdiction, and for the trial of 
piracies, in all other cases the causes should be tried in the 
State courts with the right of appeal to the Supreme Oourt.^ 
A resolution somewhat similar to this last provision was intro- 
duced in the Senate in 1793. It proposed to so amend Article 
III, section 1, of the Constitution as to enable Congress to vest 
the judicial jwwer of the United States "in such of the State 
courts as it shall deem flt."^ 

The above propositions were all intended to decrease the 
number and power of the Federal inferior courts, but on the 
last day of the third session of the First Congress (March 3, 
1791), Mr. Benson of New York introduced a series of fourteen 
amendments making provision for the establishment and reg- 
ulation of new Federal courts to be known as general judicial 
courts. Such courts were to be created in each State, and 
minute provision was made for the composition and jurisdic- 
tion of the court, for the duties of the judges and other offi- 
cials, as well as regulations governing their relation with other 
courts, and th^ necessary procedure in regard to impeach- 
ments.^ The consideration of the series was postponed to the 
next Congress, but there is no record that it was again 
introduced.* 

75. JURISDICTION OF THE COURTS. 

Exception was early taken to the extensive jurisdiction con- 
ferred on the United States courts by the Constitution. Among 
the amendments proposed by Massachusetts and New Ilamp- 
shire there was one intended to deny, in the case of suits 
between citizens of different States, the right of an appeal to 
the Supreme Court except the matter in dispute was of the 
value of $3,000,' and the Massachusetts i)roposition further 
stipulated that the Federal judicial power should not extend 
at all to such cases unless the matter in dispute was of the 
value of $1,500. A proposition similar to the Massachusetts 



1 App., No. 69. 

' App., No. 810. In the German Empire the ntate courts perform the functions of the 
federal courts. Hart'H Federal Governmpnt, Harv. Hist. Mon., No. 2, sec 249. 

*App., Nos. 298-.312. 

* In 1801 the Federalists, Just before passing out of power, in order to retain their con- 
trol of the judiciary, panseil the circuit court act, creating twenty-three new judges. In 
1802 the Republicans repealed the net, thus throwing out of office the new Judges appointed 
by President Adams. McMaster, U.S., ii, pp. 474, 606-611 ; Schonler, U. S., I, pp. 488-89; 
II, pp. 23-24. 

•App., Nos. 7, 20. 



J^ROPOSED AMENDMENtS TO TitE CbNdTlTUTlON. l65 

amendment was rejected in the First Congress by the Senate.' 
This was the first attempt to fix, by constitutional provision, 
a limit of value to the matter in controversy. 

Jealousy of the power conferred upon the Supreme Court 
was early shown by other propositions to limit the extent of 
its jurisdiction. The amendment of the Virginia and North 
Carolina conventions, recently referred to, was presented as a 
substitute for the article in the Constitution relative to the 
Federal court.^ This proposition omitted from the list of cases 
over which the United States courts should have jurisdiction 
several of those enumerated in the Constitution, thus curtail- 
ing the influence of the Federal court and the power of the 
General Government.^ A similar amendment was introduced 
in the Senate during the First Congress.* 

Another set of amendments attacked the clause which was 
later construed to admit suits against States. Mr. Tacker, in 
1789, in the House proposed to so amend this clause that it 
should read as follows: ^' Cases between a State and foreign 
States, and between citizens of the United States. States 
claiming the same lands under grants of different States." ^ 

The clause affecting suits as to lands gave rise to a proposi- 
tion by the New York convention forbidding the extension of 
the Federal judicial power to such controversies unless they 
relate to claims of territory or jurisdiction between States and 
individuals under the grants of different States.^ 

Another cause of grievance was the retroactive jurisdiction 
given to the court. The Virginia and North Carolina conven- 
tions included a provision in their amendment prohibiting the 
judicial power of the United States from extending to cases 
where the cause of action originated before the ratification of 
the Constitution,' except in territorial disputes and suits for 
debts due to the United States.^ This likewise failed in the 
First Congress, but the Rhode Island convention in 1790 
renewed the proposition.* 



» App., No. 256. 

*App.,No8. 39,92; ante par., 74. 

*Tbe following clausea were to be omitted: "Between a State and citizens of another 
state; between citizens of different States, and between a State, or the citizens thereof, 
and foreign States, citizens, or subjectn." 

* App., No. 284. 
•App., No. 209. 
•App., No. 73. 

* This wonld have thrown ont the Gideon Olmstead case. Post, p. 157, note 6 ; p. 160. 
»App.,No8.39,92, 

•App., No. 108. 



156 AMERICAN HISTORICAL ASSOCIATION. 

76. ji:risdiction of the COURTS— suits against states. 

Uneasmess was early felt over the question of the suability 
of a State,^ as is shown by the action of the ratifying conven- 
tion of Ehode Island in declaring, May, 1790, that the judicial 
power of the United States, in cases in which tlie State may 
be a party, does not extend to criminal prosecutions, or to 
authorize any suit by a person against a State; and in order 
to remove all doubt they proposed an amendment asserting 
that Congress did not have power to interfere with a State in 
the redemption of its paper money .^ 

When, a few years later, the Supreme Court in its first impor- 
taut constitutional decision ^ held that a State could be sued 
by an individual citizen of another State, State sovereignty 
was instantly aroused, especially in Georgia, Maryland,* New 
York,*^ and Massachusetts,^ whose officers hjui been cited to 
appear before the bar of the Federal court as defendants in 
such suits. The legislature of Georgia expressed its indigna- 
tion by passing a law subjecting to death " without benefit of 
clergy" any officer who should serve such a process against 
that State. Many of the other States, being heavily in debt, 
joined the movement to secure an amendment. The first effort 
in Congress to secure an amendment to the Constitution in 
regard to this question was made early in 1793, when a reso- 
lution containing the exact phraseology of the present elev^- 
enth amendment was introduced in the Senate, considered, 
and postponed.' Before the close of the year the legislatures 
of several States, following the example of Massachusetts, 
passed resolutions calling on their Kepresentatives to take 



> Madison and Marshall in the Virginia convention both denied that the Constitution 
would warrant the exercise by the Supremo Court of the power to summon an unwillinp 
State as defendant against an individual. Elliot's Debates, iii, 533, 555. Hamilton held 
in the Federalist (So. lxxxi) that the provision only applied to action to be brouglit by 
a State, and not against it. See also Ilaus v. Louisiana, 1^4 U. S., 1, for historical review. 

« App., Xo. 108. The Rhode Island lej^islature had already (1786) had trouble with its 
State judiciary over a legal-tender law it had passed to force the acceptance of the State 
paper at its face value, in the case of Trevitt t». "Weeden, 2 Chandler's Criminal Trials, 269. 
See also article by J. B. Thayer in Harvard Law Review, Vol. vii, Xo. 3; Adams in 
Atlantic Monthly, Vol. Liv, pp. G18-619; Coxe, Judicial Power and Unconstitutional Leg- 
islation, p. 234 et seq. ; "Willoughby, The Supremo Court, p. 31; Cooley. Const. Limita- 
tions, p. 160, note 3. McMaster, Vol. i, pp. 331-341 ; post, par. 137. 

» Chisholm v. Georgia, 2 Dallas, 419. HcMaster, Vol. n, pp. 182-186. 

• Van Stophorst v. Maryland, 2 Dallas, 401. 

• Oswald r. New York, 2 Dallas, 401, 415. 

• Vassal r. Massachusetts, Hildrcth, iv, 407, 446; Pitkin, Hist, of the United States, ii, 
335, 341 : Const. Hist, as Seen in Am. Law, 70-71. 

'App.,No.313. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 157 

speedy and effectual measares to secure the adoption of this 
amendment to the Constitution.^ In the next session of Con- 
gress the amendment was reintroduced in the Senat«.^ Two 
unsuccessful attempts were made to amend it — one by Galla- 
tin,^ to permit suits against States in the United States courts 
instituted by individuals only in cases arising under treaties;^ 
the other to permit the jurisdiction of the United States to 
extend as provided in the Cpnstitution, except when the cause 
of action shall have arisen before the ratification of the 
amendment.^ This, if passed, would have retained the juris- 
diction of the court over all future cases, but would have dis- 
missed all the previous cases, such as those then agitating the 
country, which had arisen out of the Revolutionary war.*' 

The amendment passed the Senate by the large majority of 
23 yeas to 2 nays. In the House an attempt to amend was 
made by adding to the article the following words: *'When 
such States shall have previously made provision in their own 
courts whereby such suits may be prosecuted with effect." It 
received only 8 votes in its favor, and the Senate proposition 
passed by a vote of 81 yeas to 9 nays, and soon after received 
the necessary ratification and became incorporated into the 
Constitution as the eleventh amendment.^ 

But even this amendment did not go far enough in restrict- 
ing the jurisdiction of the Federal courts to satisfy all. In 
1805 Senator Breckenridge of Kentucky introduced an amend- 
ment from the legislature of his State, which read: '^The 
judicial power of the United States shall not be construed to 



1 App., Nos. 319a, 310b, 319c, Massachasetta, Connecticut, and Virginia. Tbn Massachu- 
setts resolutions declared that tlie power claimed of compelling; a State to be made a 
defendant in United States courts in such cases is " dangerous to the peace, safety, and 
independence of the several States and ropu^ant to the first i)riuciples of a Federal 
Government." The Virginia resolutions declared " the decision of the Supreme Federal 
Court incompatible with and dangerous to the Sovereignty and Inde])endence of tho 
Individual States, as the same tends to a general consolidation of these confederated 
Republicks.'* 

« App., No. 321. 

• App., No. 322. 

*ir such a provision bad been adopted the recent trouble with Italy caused by the 
Louisiana episode might have been avoided by giving the relatives of the persons killed 
an opportunity to seek redress in the United States courts. 

•App., No. 323. 

* It would have prevented farther action in the Gideon Olmstead case, which was not 
finally settled until 1809. The case grew out of the seizure of the sloop Active in 1778 
and the difference in the decisions rendered by the Pennsylvania court of admiralty and 
the Committee of Appeal of the Congress of the Confederacy. Annals of Congress, 
Eleventh Cc»ngres8, second session, pp. 2253-2270. Post, par. 77. 

»App., No. 321, for list of States ratifying. In Hollingsworth «. Virginia, 3Dall.,378, 
decided in 1708, it was declured that the amendment had been constitutionally adopted, 
not requiring the signature of the President. 



158 AMERICAN HISTORICAL ASSOCIATION. 

extend to coutroversies between a State and the citizens of 
anotber State; between citizens of diilereut States; between 
citizens of the same State claiming land under grants of dif- 
ferent States, and between a State and the citizens thereof 
and foreign States, citizens, or subjects.'' * This same amend- 
ment was indorsed in the following year by the legislatures of 
Georgia, Pennsylvania, New Jersey, and Vermont.^ In 1807 
Henry Clay, shortly after his first appearance in Congress, 
while filling the unexpired term of Senator, submitted a reso- 
lution similar to that proposed by the Senator from his State 
two years before.^ 

In 1833 the legislature of Greorgia, in her call for a constitu- 
tional convention, expressed a desire that the Constitution 
should be so amended "that the jurisdiction and process of 
the Supreme Court may be clearly and unequivocally settled."* 
This subject was without doubt suggested by the recent con- 
flict of jurisdiction between the Supreme Court and the State 
of Georgia in the Cherokee cases.^ 

Some of the resolutions in regard to the establishment of the 
tribunals other than the Supreme Court for the settlement of 
disputes arising between the States and the General Govern- 
ment, which are discussed in the following section, would have 
conferred upon the Senate or some other body the duty of 
pronouncing upon the constitutionality of State laws, but an 
amendment introduced in 1846 proposed not only to absolutely 
prohibit the judicial department from declaring void ''any act 
of Congress or of any State legislature, on the ground that it is 
contrary to the Constitution of the United States or contrary 
to the constitution of any particular State," ^ but also failed to 
confer this power upon any other branch or department of the 
Federal Government. 

But few propositions relative to the jurisdiction of the Su- 
preme Court have since been presented, and these few within 
recent years. The only other attempt to restrict the jurisdic- 
tion of the Federal courts was made in 1882 by members from 
Mississippi in both branches of Congress.' On the other hand. 



> App., No. 365. For other attacks on the Federalist judiciary at this same period, see 
ante, pp. 140-150, and notes. 

* App., Nos. 36&a, 370, 37.5a, 878. Rhode Island disagreed, H. J., VoL v, reprint, p. 328. 
» xVpp., No. 370. 

* App., Ko. 617. 

* Cherokee Nation v. Georgia, 5 Peters 1; Tassels v. Geondfti Von Hoist i, pp. 433-458; 
See post, par. 77, 5 Pet«rs, 1 ; Worcester v. Georgia, 6 Petero, 515. 

* App., No. 750. See post, par. 77. 
' App., Kos. 1555, 1559. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 159 

there have been two propositions which show a tendency to 
extend rather than to curtail the jurisdiction of the courts. 
The first of these, introduced in 1872, was intended primarily 
to facilitate the decision of the constitutionalityof any Federal 
law. It provided that the Supreme Court "shall have original 
jurisdiction in all cases involving or affecting the constitu- 
tionality of any Federal law, so far as to determine the question 
of the constitutionality of the same," and "upon the applica- 
tion of any State, corporation, or person, suggesting the uncon- 
stitutionality of any Federal law or any part thereof," should, 
within six months from the date of the application, determine 
the question.^ It is worthy of note that-the second of these, 
and also the last amendment presented relative to the judiciary, 
proposed to rescind the eleventh amendment, and give Con- 
gress power to provide "by appropriate legislation for the 
legal enforcement of the obligations of contracts entered into 
by any of the States of the Union."^ This was introduced by 
Mr. Moore, in 1883, and is the only attempt that has been made 
to repeal the eleventh amendment since its adoption. This 
proposition was probably suggested by the impunity with which 
some of the States have repudiated their debts.' 

77. OTHER TRIBUNALS FOR THE SETTLEMENT OF DISPUTES BETWEEN 
THE STATES AND THE GENERAL GOVERNMENT. 

In consequence of the difficulty arising out of the relations 
between the States and the United States, there have been six 
amendments introduced at different periods providing for some 
other tribunals higher than the Supreme Court. These will 
be considered chronologically. 

(1) The New York convention of 1788 proposed that a per- 
son aggrieved by any judgment of the Supreme Court, in any 
cause in which the court had original jurisdiction, should, upon 
application, have a commission review the case with power to 
correct the errors in the judgment, sentence, or decree. This 
commission was to consist of not less than seven men learned 
in the law, appointed by the President upon the confirmation 
of the Senate.* 



^ App., No. 1346. It further made provision for extending the appellate jurisdiction of 
the Supreme Court to all cases "where the writ of habeas corpus will lie in the several 
Federal oonrtu inferior to the Supreme Court." 

* App., No. 1573. 

* Vir^nia had been particularly prominent in this movement. Attempt was made by 
creditors to collect from Louisiana by transferring their evidence of indebtedness to other 
States (New Hampshire v. Louisiana and New York v. Louisiana, 108 U. S., 76), bat failed. 
See also Haus v. Louisiana, 134 U. S., 1. 

*App.,No.71. 



160 AMERICAN HISTORICAL ASSOCIATION. 

(2) The creation of a new tribunal to determine disputes 
between the States and the General Government has been 
thrice suggested. The legislature of Pennsylvania, in con- 
sequence of the State being obliged to yield in the famous 
Gideon Olmstead case * to the decision of the Supreme Court, 
passed a resolution in 1809 instructlDg their Senators and Rep- 
resentatives to use their influence to procure an amendment to 
the Constitution so that an impartial tribunal may be estab- 
lished to determine disputes between the General and State 
governments.* This amendment was not concurred in by a 
single State. On the contrary, the legislatures of several of 
the States formally disapproved of it,^ among them Virginia, 
Ohio, Kentucky, and Georgia. This fact is of especial interest 
in view of their subsequent action. 

In like man ner, the legislature of Georgia in 1833 expressed its 
desire for an amendment authorizing the establishment of some 
tribunal of last resort for the settlement of all such disputes.* 



' The Pennsylvania antboritios had forcibly renisted the enforcement of the decision of 
the Supreme Court affirming the decision given by the Committee of Appeal of the Con- 
gress of the Confederac3\ In this caae, decided in 1800, the Supreme Court first found 
Itself called upon to declare a State law void. United States v. Peters, SCranch, 115; 
Constitutional History as Seen in American Law, pp. 82-85; Hildreth, iii, pp. 155-164; 
Story, 1, p. 282, note ; ante, par. 76. For other references, see Foster, Com. on Const., p. 143, 
note 14. 

*App., !Ko. 307; Annals of Congress, Eleventh Congress, second session, pp. 2253-2270; 
Annual Register (1800), pp. 150-175; ibid. (1810), pp. 113-136; Jour, of Senat« of Penn. 
(lf^08-00), pp. 268 et seq. 

s The following States are known to have passed resolutions of "disapproval:" New 
Hampshire, Vermont, Now Jersey, Maryland, Virginia, North Carolina, Georgia, Ohio, 
Koutucky, and Tennessee. No. Am. Rev., October, 1830, pp. 507-512 ; Niles* Register, vol. 
xui. pp. 02-03, 318-310; vol. xun, pp. 84-85, 03, Suppl.. p. 24; The Aurora, February 8, 1810; 
Jour, of Senate of Penn. (1808-00), p. 268; ibid. (1800-10), pp. 74. 166, 281 ; ibid. (1810-11), pp. 
37, 41, 165 ; ibid. ( 1811-12) , p. 05. The legislature of Virginia unanimously declared that '*they 
are of the opinion that a tribunal is already provided by the Constitution of the United 
States, to wit, the Su])reme Court, more eminently qualified * * * to decide the disputes 
aforesaid in an enlightened and impartial manner than any other which could bo created." 
"The creation of a tribunal such as is proposed by Pennsylvania would, in our opinion, 
tend rather to invite than to prevent collisions between the Federal and State courts. It 
might also become in process of time a serious and dangerous embarrassment to the opera- 
tion of the General Government." (/om))are with subsequent action of Virginia, pi). 101- 
162, note 5. On the other hand, in 1831 the logi.slature of Pennsylvania declaretl that the 
Supreme Court had jurisdiction on constitutional questions. Story, vol. i, p. 282, note 1; 
Am. An. Reg., vol. 6, pp. 330-337. 

* App., No. 618. Counter replies from Massachusetts and Virginia. Am. An. Reg., voL 
VI. pp. 356-357, 316-317, 336-337. Resulvea of Massachusetts, vol. XIX, pp. 411-423. Governor 
Troup, in a letter to the Senators and Representatives of Georgia in Congress, under date 
of February 21, 1827, writ-cs: *'I consider all questions of mere sovereignty as matter for 
negotiation between the States and the United States until the competent tribunal shall 
be assigned by the Constitution it«clf for the adjustment of them." * « * "Accord- 
ing to my limited conception, tlie Supreme Court is not made by the Constitntion of the 
United StAtes the arbit-er in controversies involving rights of sovereignty between the 
States and the United States." Niles' Register, xxxii, 20. See reply of the legislature 
of Georgia to MarshalKs issue of the writ of error in case of Tassels. Niles' Register, 
XXXIX, 338: Von Hoist, History of the U. S., I, 455. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 161 

Their owa controversies with the United States authorities' 
and the recent nullification movement in South Carolina'' nat- 
urally suggested this amendment. 

A third proposition was that such controversies should be 
referred to the Senate. 

In the early twenties the Democracy was greatly excited 
over the recent decisions of the Supreme Court extending and 
strengthening the powers of the General Government.^ At 
the opening of Congress in 1821 Senator Johnson of Kentucky, 
later Vice-President, introduced an amendment which pro- 
vided that in all controversies to which the judicial power of 
the United States should be construed to extend to which a 
State should be a party, and in all cases in which a State should 
desire to become a party, "in consequence of having a consti- 
tution or law of such State questioned, the Senate of the 
United States shall have appellate jurisdiction."^ This reso- 
lution led to an interesting debate, in which the right of the 
Federal court to declare a State law unconstitutional was 
called in question. Senator Johnson opened the discussion 
with the remark that his resolution was prompted by the deci- 
sion which had declared unconstitutional an act of the Ken- 
tucky legislature called the " occupying claimant law." Later, 
in an elaborate speech attacking the recent decisions of the 
Supreme Court, he showed that the Federal judiciary had 
declared unconstitutional and void the laws of nine of the 
States.^ "I know of no clause in the Federal Constitution," 



' Cherokee Nation v. Georgia, 5 Peters, i; Taasels v. Greorgia; copy of writ (1830), Niles 
Register, XXX IZ, 338; Worcester v. Geor>;ia. 6 Peters, 515; Von Holnt, 1,433-458; Bryce, i. 
268-289; Reply of MaAsachusetta legislature (1831) against the acfcion ot Georgia , Jour, ot 
Senate of Penn. (1830-31), p. 541. 

'See preamhie of the resolutions passed by the legislature of South Carolina calling 
for a convention to amend the Constitution of the United States. Am. An. Reg., vol. viii 
295. See post, pars. 83. 177. 

* Even Jefferson from his retirement felt called upon to write in 1820 : ' ' The judiciary of 
the United States is the subtle corps of sappers and miners constantly working under 
ground to undermine the foundations of our confederate fabric. They are constantly 
constructing our Constitution from a coordination of a general and a special government 
to a general and supreme one alone." Works, vii, 192 ; see also ibid., 134, 210. 256. 

* App., No. 501. Sumner, Andrew Jaokson, p. 128. This would correspond with the 
practice of the present German Empire. Hart, Fed. Govt., sec. 260. 

*New Hampshire, New York, New Jersey, Pennsylvania, Maryland, Virginia, Ohio, 
Kentucky, and Georgia, in the following cases: New: Hampshire (1819), Dartmouth Col- 
lege p. Woodward, 4 Wheaton, 518. New York (18 19) , Sturges v. Crowninshield, 4 Wheatou. 
122. New Jersey (1812), New Jer.<)ey v. Wilson, 7 Cranch. 164. Pennsylvania (1808) . United 
States V. Peters, 5 Cranch, 115. MaryUnd (1819), McCuUoch v. Maryland, 4 Wheaton, 316. 
Virginia (1821), Cohens v Virginia, G Wheaton, 264. Oliio (1819-1821). Ohio Bank Tax Case 
(Bank of Ignited States v. Osboru et al ), 9 Wheaton, 738; Niles Register, xvii, 139; xix, 



H. Doc. 353, pt 2- — 11 



162 AMERICAN HISTORICAL ASSOCIATION. 

he continued, "that gives the i)ower to the judiciary of declar- 
ing the law and constitution of a State repugnant to the Con- 
stitution of the United States and therefore null and void. 
No express grant, no fair instruction, contains it, and the 
States never designed so to impair their sovereignty as to 
delegate this power to the Federal judiciary. * But they have 

65, 85, 129, 147, 227. 294, 310, 337, 346. 361, 449. KeDtaoky (1819), Kentucky Bank Tax v. Bank 
of United Stotes, Niles' Register, xv, 436; xvi, 56. Kentucky (1820-1824), Ocoupying 
Claimant Law Caiie, Niles' Register, xxi, 404; S. J., Eighteenth Congress, first session, 
p. 183. Georgia (1810), Fletcher o. Peck (Yazoo claims), 6 Cranch, 87. For tUscnsaion in 
Virginia legislature over the decision of McCulloch r. Maryland, and resolutions to croste 
a tribunal to decide such cases, see Niles* Register, xvii, 289, 311-315, 447. As a result of 
the case of Cohens v. Virginia, the legislature of Virginia passed resolutions declaring 
"that there is no rightful power" "in the Federal judiciary to arraign tlie sovereignty of a 
Commonwealth before any tribunal but that which resides in the majesty of the people." 
Niles* Register, xix, 211, 340-341, 417-418; xxi, 404. The legislature of Ohio, in conso- 
quenco of the decision of the United States circuit court in the above-cited bank case, 
passed a series of resolutions indorsing the " Virginia and Kentucky resolutions of 1798 
and 1800," declaring their right to tax the bank, and protesting " against the doctrine that 
the political rights of the separate States, * * * and their powers as sovereign States 
may be settled and determined in the Supreme Court of the United States, so as to con- 
clude and bind them in cases contrived between individuals and where there are no one of 
them parties direct." Niles' Register, XIX, 339-341 ; ibid., xxi, 342-343. The legislatures 
of New Hampshire and Massachusetts replied maintaining a contrary view, and declaring 
the jurisdiction of the court and " that the preservation and due exercise of this power is 
essential to the peace and safety of the Union." Niles' Register, xx, 313; xxi, 404. The 
legislature of Kentucky passed in the early twenties, repeatedly, resolutions "remonstrat- 
ing and protesting" against the decision of the United States courts concerning the 
''occupying claimant law." One of these declared the decision an "infringement of the 
sovereignty of the State" and requested their Senators and Representatives "to secure 
the passage of a law requiring the ooncurrence of two thirds of the court in all cases 
involving the validity of a law of any State or an increase in the number of judges." 
S. J., Eighteenth Congress, first session, p. 183; Niles' Register, xxi, 406. In 1829 the 
legislature of Virginia passed the following resolutions: "Resolved, That the Constitu- 
tion of the United States being a federative compact between sovereign States, in con- 
struing which no common arbiter is known, each State has the right to construe the 
compact for itself." They declared the tariff acts unconstitutional. Am. An. Reg., 
Local Hist., p. 131. See also resolutions of South Carolina, Georgia, and Alabama of this 
same period; ibid., pp. 136-138, 140-142, 147. No. Am. Rev., xxxi, 487. Post, pars. 148. 
156. See resolutions of the legislature of Delaware in 1833, in reply to those of South 
Carolina, declaring that the CouHtitution established the Supreme (^ourt for the settle- 
ment of controversies between the Unitc'd States and the respective States. S. J.. Twenty- 
second Congress, second session, 157-158. Post, par. 177. In 1859 the legislature of Wis- 
consin, after the Supreme Court, in Abloman r. Booth, 21 Howard, 506, declared a law of 
.the State unconstitutional, passeil resolutions in which a "positive defiance is urg<Ml as 
the rightful remedy." Lalor, iii, 162: Landon, pp. 239-240. Other references, see Story, i, 
pp. 261, note 3: 272, 281, noU' 1: 282. note 1. Niles' Register, xliii, Supplement. 

* Mercer of Maryland said in the Federal Convention of 1787: "I disapprove of the 
doctrine that the judges as expositors of the Constitution have authority to de<*Iaro a law 
void. Laws ought to be well and cautiously made and then be uncontrollable." Elliot, 
V, 429. Upon the n^jection of the motion to give to Cong^ress the power of negativing 
such laws as were unconstitutional, Gouverneiir Morris pointed out that this power 
would rest with the judiciary. Elliot, v, 321. See Bryce for comment on this remark, 
I, 257. See also Roger Sherman's remarks, Elliot, v, 321. Marshall in the Virginia 
convention asserted the same principle. Elliot, iii, 553. For origin of the practice of 
the judiciary declaring legislative act void, consult the following: Brinton Coxe, Judicial 
Power and Unconstitutional Legislation, Parts u-iv in passim ; James B. Thayer, Har- 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 163 

assumed it, and to counteract the evils which must result from 
this assumption a responsible tribunal of appeal should be 
provided." "Is it not," he inquired, "equally the duty of 
Congress to declare the opinion of the Federal judiciary null 
and void in every case where a majority of Congress might 
deem it repugnant to the Constitution ?" ^ The resolution was 
repeatedly considered, but was finally laid on the table. ^ 

(3) Another method for the decision of all questions of con- 
stitutional power was suggested by Senator Davis of Ken- 
tucky, in 1867. It was "that the Constitution should be so 
amended as to create a tribunal with jurisdiction to decide all 
questions of constitutional power that shall arise in the Gov- 
ernment of the United States and all conflict of jurisdiction 
between it and the State governments,"'* the tribunal to con- 
sist of one member ft'om each State, appointed by the State, to 
hold his office during good behavior, and a msyority of the 
whole number of the tribunal to be necessary to make a deci- 
sion. In 1871 Senator Davis introduced a similar amendment 
specifying more in particular over what questions the tribunal 
should have jurisdiction and providing for the details of the 
procedure and composition of the tribunal. Among other 
duties imposed upon this body, was that of opening and 
counting the votes of the electors of the President and Vice- 
President.^ The decisions of the Supreme Court sustaining 
the constitutionality of most of the reconstruction acts proba- 
bly called out this proposition. 

78. SUMMARY OF THE PROPOSITIONS RELATIVE TO THE 

JUDICIARY. 

As we review the various propositions that have been cjon- 
sidered in the preceding pages, we see that since the eleventh 



vard Law Beview, vii, No. 3; Brooks Adams, Atlantic Monthly, November, 1884; C. B. 
Elliott. The Lejcislature and the Cotni«. Political Science Quarterly, v, 224; W.W.Wil- 
loiighby, The Supreme Court of the United States, (chapter V; also Story, Chapter iv, with 
notes. For list of statutes declared void by Federal courts, see Davis, Appendix to the 
Report of the Decisions of the ^Supreme Court of the United States, 131 U. S., ccxxxv 
et seq. See Goxe's criticism of this list, chapter ii. 

 Annals of Congress, Seventeenth Congress, first sesHiou, pp. 80-81. Holmes offered, as 
an amendment to the proposition, one for the removal of Judges on address of Congress. 
See ante, par. 71. 

* A resolution was introdnced in the legislature of Maryland in 1881 for the decision of 
the constitutionality of State laws by the Senate of the United States and for the con- 
currence of two-thirds of the Senate to declare any State law iinconstitutional. Niles' 
Register, xxxix, 357. For amendment introduced in 1846, taking away this )>ower from 
the Federal Government, see ante, par. 76, p. 158. 

«App.,No.l223. 

«App.,No.l385. 



164 American historical association. 

aiueudmeut has beeu secured, there has been no considerable 
movemeut to alter the provisions of the Constitution relative 
to tliis department. The few attacks made in the early years 
of the present century were either the outgrowth of party hos- 
tility to the political complexion of the judiciary, which was 
strongly Federalist, or the expression of the spirit of States 
rights, which viewed with alarm the nationalizing tendency of 
the decisions of the Supreme Court under the leadership of 
John Marshall.^ No great dissatisfaction has beeu felt with 
the judiciary, and hence there has been a general tendency 
to retain the present system, with such changes as can be 
effected by law. In recent years there have been one or 
two attempts to increase the number of judges, in order to 
decrease the amount of work required of the judges of the 
Supreme Court, but inasmuch as the number of judges is fixed 
by law and not by the Constitution, there is no need of an 
amendment to effect this change, as is shown by the law 
recently passed by the Fifty-first Congress for the creation of 
new courts and judgeships. The last attempt to change the 
judiciary by means of an amendment indicates that there is 
at present a tendency to increase rather than to restrict the 
jurisdiction of the Federal courts. 



I For eetimate of the inflaenc« of Marshall, aee article by Henry Hit'Thcock in Constitu- 
tional History aa Seen in American Law, chapter ii ; Bryoe, i, 207, 384-»85. 



Chapter V. 

PROPOSED AMENDMENTS AFFECTINQ THE POWERS OF 

THE GOVERNMENT. 

79. DIVISION OF POWERS BETWEEN THE SPATES AND THE 

GENERAL GOVERNMENT. 

In the formation of the Government, one of the most difficnit 
things proved to be the setting aside the powers of the Gen- 
eral Government from those of the States. Historically, there 
were many powers which had been exercised by the colonies, 
and later by the States, in which the English Government and 
the Gontiuental Congress and the Congress of the Confedera- 
tion had never shared. The principle tacitly adopted was 
that the States shonld retain all not expressly delegated to 
the Union. Then it was agreed that the grant of power to the 
Federal Government shonld be expressed in a few broad 
phrases. No attempt was made to enumerate minately, but 
generally principles requiring later interpretation were admit- 
ted. Hence disputes quickly arose, and parties championing 
either broad or strict construction were formed. During the 
one hundred years there have been successive controversies. 
Considerable difficulty has been experienced in the attempts 
to discriminate between the powers granted by the Constitu- 
tion to the States and General Government, respectively. 
Especially was this true in questions concerning taxation and 
commerce. Naturally, attempts have been made to secure 
amendments, either to remedy defects or to establish some 
favorite principle. It is noteworthy that of the propositions 
early brought before the States for ratification two were simply 
in conformation of the principles adopted by the Convention.^ 
The change in the relative powers and importance of the 
States and the Union is due to the growth of custom, and 
especially to the effect of the civil war. 

80. RiSSERVATION OF NONDELEGATED POWERS TO THE 

STATES. 

The Massachusetts convention was the first to adopt the plan 
of proposing amendments to the Constitution at the time they 



> The ninth and tenth amendments. 



105 



166 AMERICAN HISTORICAL ASSOCIATION. 

ratified it. One of the ameudnieuts which this convention most 
desired to have added to tlie Constitution was a claase dis- 
tinctly reserving the nondelegated powers to the States, hence 
they placed first in the series which they recommended an 
article which stipulated ^* that it be explicitly declared that all 
powers not delegated by the aforesaid Constitution are reserved 
to the several States, to be by them exercised." ^ The plan 
thus suggested of proposing amendments was taken up by six 
of the other ratifying conventions. A favorite subject for their 
recommendation was a provision similar to one quoted above.^ 
In accordance with the desire so generally expressed, Mr. Mad- 
ison included in the series of amendments proposed by him in 
the First Congress a provision similar to that recommended by 
the States.^ It was in these words : '^ The powers not delegated 
by this Constitution, nor prohibited by it to the States, are 
reserved to the States respectively."^ Several unsuccessful 
attempts were made in both Houses to insert the word ** ex- 
pressly" before the word " delegated." * The amendment finally 
passed Congress at the same time as the others of the series, 
with the addition of the words '^ or to the people " at the end 
of the article.^ 

81. EFFECT OF EXPRESSED PROHIBITIONS ON CONGRESS. 

Another phase of the same agitation grew out of the fear 
that the expressed inhibition on Congress against the exercise 
of certain powers might be construed into an assumption of 
powers not so prohibited. To meet this case the constitutional 
convention in Virginia also recommended an additional article 
as a guide in the int'Crpretatiou of the Constitution and to 
prevent the extension of the power of Congress.' It was in 
these words : ^^ That those clauses which declare that Congress 
shall not exercise certain power be not interpreted, in any 
manner whatsoever, to extend the power of Congress; but that 
they be construed either as making exception to the specified 
power when tbis shall be the case, or otherwise, as inserted 



I App., No. 1. 

* Convention in New Hampshire, South Carolina, Virji^inia, and North Carolina also pro- 
posed a dmilar amendment. App., Nos. 11, 14, 26, 78. 

s App., Nos. 146, 190. 

* A similar provision in the oonstitntions of New Hampsliire, Massachusetts, Indiana, 
and West Virginia. 

« App., Nos. 191, 192, 231. 232, 233, 265, 266. 

* App., No. 266. 

'The North Carolina convention incorporated this amendment in her series as well as 
several of the other propositions of the Virginia convention. App., No. 96. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 167 

merely for greater caution."* This might also have been con- 
sidered an additional guaranty of the rights of the States, but 
Mr. Madison in his series had so changed this proposition that 
it had reference only to the rights reserved to the people. It 
read: *'The exception here or elsewhere in the Constitution 
made in favor of particular rights shall not be so construed as 
to diminish the just importance of other rights retained by the 
people, or as to enlarge the powers delegated by the Constitu- 
tion, but either as actual limitations of such powers, or as 
inserted merely for greater caution.'' ^ The committee reported 
this amendment in the form in which it was adopted^ and as it 
now appears in the ninth amendment:^ '^The enumeration in 
the Constitution of certain rights shall not be construed to 
deny or disparage others retained by the people."* 

82. SUITS AGAINST STATES. 

In only one case has the Constitution been so construed as 
to arouse a sufficient number of the States to secure its 
emendation. This was occasioned by the decision of the 
Supreme Court that they would entertain suits instituted by 
individuals against States.^ 

After several preliminary attempts had been made, an 
amendment passed Congress September 5, 1794, forbidding the 
judicial i)ower of the United States extending "to any suit in 
law or equity, commenced or prosecuted against one of the 
United States by citizens of another State, or by citizens or 
subjects of any foreign State," and was declared to have been 
ratified'' in a message of the President to Congress, dated 
January 8, 1798. In general, the effect of this amendment has 
been salutary, and only one effort has been made to annul it.' 

83. IMPLIED POWERS OF CONGRESS. 

In view of the increasing tendency to rely upon the doc- 
trine of implied powers, in 1806, Mr. Clopton of Virginia pre- 
sented an amendment providing that the necessary and proper 

iApp.,No.42. 

* App., No. 139. 

* App., Km. 177. 178. 

* App., No. 229. 

* In 1864 Mr. Davis proposed an amendment considerably expanding this article. App., 
No. 1039o. 

* Ckmsidered more fUly, ante, par. 76. 
» App., No. 321. 

* App., No. 1573. Proposed in 1883. See ante, par. 76. 



168 AMERICAN HISTORICAL ASSOCIATION. 

clause of section 8, Article I, in regard to the powers granted 
to Oongres^ '^ shall be construed so as to comprehend only 
such laws as shall have a natural connection with and imme- 
diate relation to the powers enumerated in the said section, or 
to such other powers as are expressly vested by the Oonstitu* 
tion in the Government of the United States, or in any depart- 
ment or office thereof.''^ No further attempt was made to 
amend the Constitution in regard to the division of powers 
until some twenty- three years later. In December, 1829, Mr. 
Hall of Forth Carolina introduced a resolution in the House 
calling for the appointment of a select committee to "inquire 
into the expediency of amending the Constitution so as to 
define more clearly the separation between the powers dele- 
gated to the Government of the United States and those 
retained by the people, or delegated to the State governments."* 
The House refused to agree to the resolution. This was just 
previous to the nullification by South Carolina, but the prop- 
osition may have been prompted by a desire to settle the 
question of a protective tariff. On January 9, 1833, Congress 
received an application from the State of Georgia for the call 
of a constitutional convention to amend the Constitution.^ In 
the call some thirteen particulars were enumerated in which 
the resolutions declared the experiences of the past had clearly 
proved that tho Constitution required amendment. 

The first two of these were as follows: First, "That the 
powers delegated to the General Government, and the right 
reserved to the States or to the people may be more distinctly 
defined," and the second, "That the power of coercion by the 
General Government over the States, and the right of a State 
to resist an unconstitutional act of Congress may be deter- 
mined."* There is no occasion to look far to disi*over the 
events which suggested these propositions. Obviously they 
were, first the nullification of South Carolina, which was still 



' App., No. 377. 

»App.. No. 609. 

' Alabama also made application, and South Carolina called for a oonvontion of the 
States. See post, par. 177. 

* App., Nos. 613,614. The preamble declared that " there exist many controversies grow- 
ing out of the cases in which Congress claims to act under construction or implied pow- 
ers, out of the disposition of Congress to act under assumed powers, and out of the right 
of Jurisdiction either claimed or exercised by the Supreme Court, all of which tend to 
diminish the aflVction of the people for their own Government," etc., " to a dissolution of 
our happy Uuion, and a severance of the States into hostile commoniUes, each regarding 
and acting toward each other with the bitterest enmity." 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 169 

in its height, for the President's special message on the situa- 
tion was not sent to Congress autil a week later; and second, 
Georgia's own troubles with the Federal judiciary over the 
Indian land question.* Nothing, however, came of the appli- 
cation; it was simply received and tabled. In 1864 Mr. Davis 
proposed, as one of the series of amendments to be submitted 
to a convention of the States, an article which provided that 
"in giving construction to the Constitution," in regard to "all 
rights, liberties, or privileges assured by it to the people, or 
powers reserved to the States, and all denial, restriction, or 
limitation of powers to the United States, the Federal Gov- 
ernment, or any of its officers," this rule shall be inflexibly 
adhered to, namely, "that its particular or express language 
shall not be abrogated, impaired, or in any way affected by 
any of its general language or provision, or by any implica- 
tions resulting from it."* 

84. PERFORMANCE OF NATIONAL FUNCTIONS BY THE STATES. 

The extreme jealousy with which the rights of the States 
were guarded can be seen by the character of an amendment 
proposed by the ratifying convention of South Carolina. This 
amendment declared that "Whereas it is essential to the pres- 
ervation of the rights reserved to the several States, and the 
freedom of the people under the operation of a general gov- 
ernment, that the right of prescribing the manner, time, and 
place of holding the election to the Federal Legislature should 
be forever inseparably annexed to the sovereignty of the sev- 
eral States: This convention doth declare that the same ought 
to remain, to all posterity, a perpetual and fundamental right 
in the local government, exclusive of the interference of the 
General Government, except in cases where the legislature of 
the States shall refuse or neglect to perform and fulfill the 
same according to the terms of the said Constitution.'*^ 

It was not until 1860 that there was presented another 
amendment that can be properly classified under this head. 
Mr. Hindman of Arkansas included in the series of amend, 
ments introduced by him on the 12th of December, as a solu- 
tion of the question of the hour, an article which stipulated 
that ^^all Federal officers exercising their functions within the 



1 See ante, par. 77. 

* AppM No. 1039p. For other articles of this series, see post, par. 103. 

*App., No. 10. 



170 AMERICAN HISTORICAL ASSOCIATION. 

limits of the States" shall be appointed by State authority.^ 
But this proposition came to naught; like all the others pre- 
sented at this time it failed to meet the difficulty. In 1865 
two resolutions were proposed to amend the ninth section of 
the first article which has reference to the powers denied the 
United States Government. In what particulars can not be 
stated, for, unfortunately, the text is not given, but probably 
they contemplated extending the power of the central Gov- 
ernment.* A proposition the converse of that brought forward 
by South Carolina was prepared by Mr. Hibbard of New 
Hampshire, December 9, 1872. It authorized Congress to fix 
a uniform day for holding State elections.^ This amendment 
was probably suggested by a sense of the desirableness of 
such a change, and by the belief that it could not be secured 
without a constitutional requirement. The States have, how- 
ever, gradually come to adopt for their election the day set by 
Congress for the national elections. There are still several 
exceptions.'* 

85. GUARANTY OF THE STATE GOVERNMENT. 

In addition to the guaranty contained in the Constitution, 
the ratifying convention of Bhode Island recommended as an 
amendment that ^' the United States shall guarantee to each 
State its sovereignty, freedom, and independence, and every 
power, jurisdiction, and right which is not by the Constitution 
expressly delegated to the United States."* Rhode Island had 
been led to ratify the Constitution in part by the apprehension 
that the threat which bad been made to divide her territory 
among her neighbors might be carried into effect. Now that 
she had joined the Union, she naturally desired a constitutional 
guaranty that her integrity should be maintained, for she fully 
realized that as the smallest of the States of the Union, she 
was practically helpless against her larger and more powerful 
sisters. No other amendment of a similar character appears 
to have been presented until ninety years later. In 1880 Mr. 
Acklen of Louisiana proposed an amendment guaranteeing not 

1 App., Ko. 811. 

*Mr. Stevens of Pennsylvania, App., No. 1U42, and Mr. Bei^amin of MUsoari, App., 
No, 1062. 

* App., No. 1355. No. 1514 also provided that the first Tuesday after the first Monday 
in November in each jear for the Presidential election should be fixed for the election for 
President and Vice-President, members of Congress, and State and county officers. 

* Notably Vermont, Rhode Island, Oregon, Arkansas, Florida, and Georgia. 
•App., No. 104. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 171 

• 

only the integrity of the Union, but also the right of the States 
to '^ enforce their own local laws for their individual government 
by and through their own self chosen and elected representa- 
tives and officials," without interference by the Federal Gov- 
ernment.^ This was intended to check the growing tendency 
toward centralization.^ 

There have been two resolutions — ^the one to explain, the 
other to extend the power conferred upon the Federal Govern- 
ment by Article IV, section 4, of the Oonstitution, which pro- 
vides that ^^The United States shall guarantee to every State 
in this Union a republican form of government, and shall protect 
each of them agSlnst invasion, and, on application of the legisa- 
lature, or of the executive (when the legislature can not be con- 
vened), against domestic violence." The first of these was pre- 
sented by Mr. Florence of Pennsylvania, in 1861.^ One of 
the series of articles introduced by him at this time declared 
that the regulation of slavery within its limits was exclusively 
the right of each State, and that the Constitution shall never 
be altered or amended to impair this right of each State with- 
out its consent^ it, however, stipulated that this article shall 
not be construed to absolve the United States Government 
from rendering assistance to suppress insurrection or domestic 
violence, as provided in the Constitution. This proviso was 
doubtless suggested to meet the case of a State calling upon 
the officers of the General Government to assist in quelling a 
slave insurrection 5 otherwise they might refuse to render 
assistance on the ground that the regulation of slavery was 
exclusively the right of each State. 

The second resolution, proposed by Mr. Drake of Missouri, 
in 1870, authorized the United States to protect "each State 
against domestic violence whenever it shall be shown to the 



»App.,Xo. 1509. 

*Tbe preamble to this resolntion declares that the "growing tendency to the central- 
ization of power in the Federal Government has awakened throughout tho country a just 
fear that in the near future theperpetuity of this Union may again be imperiled by inter- 
nal commotion," etc., "thereby wrecking the peace and prosperity of the Republic and 
breaking down the doctrines of perpetual union of the States Anally and fully settled by 
the war, as well as infringing upon that home rule of the States guarantc^ed by the Con- 
stltntion/' The right of local seIf-;!Ovemment belonging to the people of each State is, 
in eleven of the older States, declared a constitutional right which the National Govern- 
ment can never infringe, viz, New Hampshire, Massachusettfl, Vermont, Maryland, Vir- 
ginia, West Virginia, North (Carolina, Missouri, Texas, Colorado, and Georgia. Stimson, 
American Statute Law, par. 198. 

>AppMl!ro.878. 



172 AMERICAN HISTORICAL ASSOCIATION. 

President, in such such manner as Congress may by law pre- 
scribe, that such violence exists in such State." ^ This amend- 
ment was prompted by a desire to give Congress constitutional 
authority for using force in the Southern States to put down 
the Eluklux Klan and other similar organizations which were 
terrorizing the negro, knowing full well that the State govern- 
ments, as x)rovided in the Constitution, would not call on the 
National Government for assistance, as the party in power in 
the most of these was politically opposed to the negro.' 

86. ACKNOWLEDGMENT OF SECESSION. 

Remembering the frequently repeated argument of 1860-61, 
that the case of the rebellion of a State had not been foreseen 
by the framers of the Constitution, it is interesting to observe 
an amendment proposed by the ratifying convention of North 
Carolina; it provided that "Congress should not declare any 
State to be in rebellion without the consent of at least two- 
thirds of all the members present in both Houses."' Not until 
the period just previous to the civil war were any further 
amendments relative to the secession of a State introduced in 
Congress, but among the numerous propositions presented 
during the second session of the Thirty-sixth Congress were 
several upon the subject which was then uppermost in the 
public mind. December 17, 1860, three days before the ordi- 
nance of secession was passed by the South Carolina conven- 
tion, Mr. Sickles of New York presented a resolution to 
amend the Constitution, providing that " Whenever a cx)nven- 
tion of delegates, chosen in any State by the people thereof 
under the recommendation of its legislature^ shall rescind and 
annul its ratification of the Constitution, the President shall 
nominate and, by and with the advice of the Senate, shall 
appoint commissioners, not exceeding three, to confer with the 
duly appointed agents of such State, and to agree upon. the 
disposition of the public property of the United States lying 
within such State, and upon the proportion of the public debt 
to be assumed and paid by such State; and upon the approval 
of the settlement agreed upon by the President and its ratifi- 



»App.,No.l328. 

' The resolution wan referred to the Committee on the Jndiciary, who subsequently 
reported it advcrsel}'. 

* xVpp., Ko. 80. For Hketch of secession movements, see Foster, Com. on the Const., 
sees. 31, 3G. * 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 173 

cation by two-thirds of the Senate present, the President shall 
forthwith issue his proclamation declaring the assent of the 
United States to the withdrawal of such State from the 
Union." ^ In the following February, Mr. Yallandigham of 
Ohio, in connection with his well-known proposition for the 
division of the Union into four sections, by which division the 
slave States practically formed one section, proposed an 
article forbidding the secession of a State without the consent 
of the legislatures of all the States of the section to which the 
State proposing to secede belongs, and empowering the Presi- 
dent "to adjust with seceding States all questions arising 
because of their secession; but the terms of adjustment shall 
be submitted to the Congress for their approval before the 
same shall be valid." '^ 

87. LIMITATION ON SECESSION. 

The above amendments were manifestly intended to facili- 
tate the peaceful secession of the Southern States. In the 
same session three other amendments were presented either to 
restrict or to absolutely prohibit suc^ action. The one intro- 
duced by Mr. Florence of Pennsylvania, January 28, 1861, as 
one of his series of compromise amendments, provided that 
" No State, or the people thereof, shall retire from the Union 
without the consent of three-fourths of the States."^ This 
was referred to the Select Committee on the Condition of the 
Country. Two weeks later Mr. Ferry of Connecticut proposed 
a resolution instructing the Committee on the Judiciary <Ho 
inquire into the expediency of so amending the Constitution 
as expressly to forbid the withdrawal of any State from the 
Union without the consent of two-thirds of both Houses of 
Congress, the approval of the President, and the consent of all 
the States." Objection was made to the resolution, so it was 
not received.* 

In the closing days of this session, after seven States had 
already withdrawn and several others were preparing to take 
similar action, Senator Doolittle of Wisconsin, who subse- 



' App., No. 824. Keferred to the Street Committee oo the Condition of the Country. 

* App., No. 904. It would seem that the same proposition was reintroduced by him in 
18e2. Riddle, Recollection of War Times, pp. 165-106. See also App., No. 977; ante, 
par. 48. 

* App., No. 891. 

* App., No. 910. 



174 AMERICAN HISTORICAL ASSOCIATION. 

quently opposed tbe passage of the reconstraction amend- 
ments, submitted an amendment absolutely prohibiting the 
secession of a State.* 

This was the last amendment of this character for the time 
being, but in 1864, Mr. Saulsbury of Delaware included in 
the series of compromise propositions, offered by him as a 
substitute for the thirteenth amendment, a provision prohibit- 
ing the withdrawal of a State "without the consent of three- 
fourths of all the States, expressed by an amendment proposed 
and ratified in the manner provided for in the Constitution.*'"^ 
In the three following years amendments were introduced, two 
of which declared the perpetuity of the Union under the Con- 
stitution, and prohibited any State from passing any ordinance 
of secession.^ One proposed placing an article in the Consti- 
tution defining the status of a State in rebellion. This 
amendment was based upon the principles of the so-called 
'* State suicide theory." By its provisions a State in rebellion 
was to be considered " as having forfeited all its rights and 
l)rivileges as a State,'' and as having reverted to the condition 
of a Territory, ** subject, like all other Territories, to the dispo- 
sition of Congress."^ These amendments were either tabled 
or indefinitely postponed, as Congress doubtless felt that the 
result of the war guaranteed better than any amendment 
could do the perpetuity of the Union unimpaired.^ 



 App., No. 952, to be added to the peace oonyention amendnienta. It was in tboat; 
words : " No State, or any part thereof, heretofore admitted or hereafter to be admitted 
into tbe TTnion, shall have power to withdraw from the jarisdiction of the United States, 
and this Constitution and all the laws passed in pursuance of its delegated power shall 
be the supreme law of the land therein, anything contained in any constitution, act, or 
ordinance of any State legislature or convention to the contrary notwithstanding." 

* App., No. 1016. 

* App., Nos. 1(MI3, 1199. No. 1065 declared tbat " Paramount 8o\'ereignty shall reside in 
the United States, and every citizen thereof, or of any State or Territory tberein, shall 
owe faith, loj-alty, and allegiance to tbe United States." In 1880 an amendment guoran- 
teeingboth the integrity of the Union and that of the States was presented. App., No. 
1509; see ante, par. 85. 

<App., No. 1106. 

* The constitutions of several of tbe Staten, adopte<l in tbe years immediately succeed- 
ing the civil war, and most of them States which had been in rebellion, contain various 
declarations, as follows: (I) The constitutions of eight States declare the Constitution 
of the United States the supreme law of the land. (2) Five declare that the State shall 
always remain a member of the American Union. (3) Six, that no law shall be passed 
in derogation of the paramount allegiance of thecitizens of the State to the United States 
Government. (4) Five, that th«re is no right on the part of the State to secede or dis- 
solve its connretion with the Union. (5) Six, that all attempts at secession ought to be 
resisted by the State (Virginia, North Carolina, Florida, and South Carolina) ; by the 
Federal Government (Nevada). StimBon, Am. Statute Law, i, p. 39, pars. 190-192. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 175 

88. LIMITATIONS ON THE STATES BY THE " RECONSTRUCTION 

AMENDMENTS." 

The effort of the Southern States to throw off the authority 
of the General Government resulted in the only amendments 
which have ever passed limiting the powers of the States.^ 
First, by the thirteenth amendment the establishment or per- 
petuation of slavery is forbidden. Second, by the fourteenth 
amendment any discrimination against citizens is forbidden, 
that article declaring that '^Ko State shall make or enforce 
any law which shall abridge the privileges or immunities of 
citizens of the United States; nor shall any State deprive any 
person of life, liberty, or property without due process of law, 
nor deny to any person within its jurisdiction the equal protec- 
tions of the laws." Third, by the fifteenth amendment the 
requirement of certain qualifications for the suffrage is for- 
bidden. 

Already the individual was amply protected from the tyr- 
anny of the central power, now the sphere of individual liberty 
was extended by the imposition of restrictions upon State 
aggression. Except for the power of enforcement, no addi- 
tional power is given to the United States by the '^reconstruc- 
tion amendments.'' They are in terms a subtraction from the 
powers of the States and the United States, but in effect <Hhe 
position of the United States is changed from that of a passive 
noninfringer of individual liberty to that of an active defender 
of the same against the State.*' ^ 

89. TERRITORIAL POWERS. 

Few subjects occupy so many pages of the statute books, the 
documents of Congress, and the reports of the Supreme Court 
as those relating to the territory of the United States, and the 
questions growing out of it. Few subjects have led to such 
passionate political debates as the disposition of public lands 
and the erection of Territories. Upon few important subjects 
have there been so small a number of amendments proposed. 
Notwithstanding the fact that the Constitution is silent as to 
the annexation of territory, and very vague as to the regula- 
tion and government of it, the only subject upon which numer- 
ous attempts have been made to secure modifications of the 



* In the First Congreas the House passed an amendment protecting the iudividual against 
a state infringing the ri<;ht of trial by jury, the right of conscience, freedom of speech 
and the press. App., No. 228. See post, par. 97. 

* Burgess, Political Science and Const Law, i, p. 185. 



176 AMERICAN HISTORICAL ASSOCIATION. 

Gonstitutiou, is the establishment of slavery in the Territories, 
and that phase of the snbject will be taken up later J 

The one portion of the territory over which the United States 
has the clearest power of government — the District of Colum- 
bia — ^has given rise to more numerous propositions. 

90. rUE EXCLUSIVE POWEES OF COliGRESS OVER THE SEAT OF GOVERN- 
MENT AND OTHER SITES. 

a 

The provision of the Constitution which vested in Congress 
the exclusive power of legislation over the Federal town and 
other Federal territory within the States seemed to some of 
the State conventions to be too broad, and calculated to cause 
conflict of jurisdiction. Hence, the conventions in Virginia 
and North Carolina proposed an amendment restricting the 
power of legislation, giving to Congress authority only over 
such regulations as respect the police and good government of 
such territory.^ The proposal made in the Senate during the 
lirst session of Congress, to add such an amendment to the 
series to be submitted to the States, failed.^ 

The New York ratifying convention also recommended two 
amendments on this subject. The first of these provided that 
the inhabitants of the district in which the seat of government 
should be situated should not be exempt from paying the like 
taxes, etc., as shall be imposed on the other inhabitants of the 
State in which such district may be, neither should any person 
be privileged within the district from arrest for crimes com- 
mitted or debts contra(5ted without the district/ In this con- 
nection it is interesting to recall that the location of the seat 
of government had not yet been fixed, and that New York 
had strong reason to hope that it might be located within her 
boundaries. 

The other proposal of the New York convention had refer- 
ence to the same right of Congress to legislate over Federal 
territory situated within the States.' It provided, as did a 
similar amendment presented by Mr. Tucker^ in the First 
Congress, that Congress should not make any law to prevent 
the laws of the States respectively, in which the places may 
be, from extending to such places in all civil and criminal mat- 
ters, except to such persons as are in the service of the United 
States, nor to them with respect to crimes committed without 
such places. 

> Poet., pars. 100-112. • App., No. 283. » App., No. 67. 

*App., Nob. 97,90. «App.,No.M. •App.,Ko.aoa. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 177 

In subseqaent years, after the seat of goyernment had been 
located in the District of Columbia, and the population of the 
District had increased, the fact became more noticeable that 
its inhabitants — contrary to the general principles of our sys- 
tem of government — were deprived of the privilege of voting 
ill Federal elections, and even had no voice in making their 
own local regulations. President Monroe, in 1818, in his annual 
message, called the attention of Congress to the anomaly exist- 
ing in our system, and recommended to their consideration the 
problem whether an arrangement better adapted to the prin- 
ciples of our Government could not be devised, which will never 
infringe the Constitution nor aifect the object which the pro- 
vision in question was intended to secure.^ 

In 1844 a proposition was made to so amend the Constitution 
that Congress should retain the power of exclusive legislation 
over the Oovernmeut buildings and grounds in the District of 
Columbia and in Federal territory situated in other States; 
but all rights of legislation over other parts of the District of 
Columbia should be retroceded to the States of Maryland and 
Virginia whenever the legislatures of these States should sig- 
nify a willingness to accept the same.^ This amendment was 
probably suggested by the slavery question, as were several 
other propositions which will be considered in connection with 
the slavery amendments.'' 

91. ABRIDGING TERRITORY. 

The peace of 1783 left several perplexing boundary contro- 
versies affecting territory normally within the area of the 
United States. The British continued to occupy posts within 
the northwestern frontier; the Spaniards retained their hold in 
west Florida, above the parallel of 31o. Id the southwest also, 
Georgia stubbornly laid claim to a large area of territory then 
occupied by Indians. 

It is therefore easy to account for the presentation in 1794 of 
an amendment dealing with both these problems. This pro- 
posed amendment declared that the powers of the Government 
should not extend to curtail or abridge the limits of the United 
States as defined by the Treaty Qf Paris in 1783, nor should the 



1 App., No. 480. CoDBt., Art. I, seo. 8, ol. 17. 

«App.,No.73e. 

sPoBt.par. 112. 

H. Doc. 353, pt 2 12 



178 AMERICAN HISTORICAL ASSOCIATION. 

State rights of preemption to Indian Imnting gi*oands within 
its limits, after a fair treaty and sale, be questioned.^ 

The Jay treaty of 1794 and the Spanish treaty of 1795 put 
an end to the exterior boundary disputes; and in 1802 a settle- 
ment of the Georgian land claims was reached. When, in 182(i, 
and again in 1842, the negotiations with England threatened 
to deprive Maine of a part of the territory to which she asserted 
title, no attempts to secure an amendment is recorded. 



92. ANNEXATION OF TERRITORY. 

> 



The next year after the Georgia controversy was laid at 
rest, the annexation of Louisiana brought on a new contro- 
versy with the New England States. No formal attempt was 
made to introduce an amendment in Congress relative to the 
annexation of Louisiana. It seems necessary, however, to 
consider certain amendments drawn up by President Jef- 
ferson.* 

In July, 1803, news arrived of the treaty concluded at Paris, 
April 30, between the United States and the French Republic, 
for the purchase of Louisiana. President Jeflferson consid- 
ered that there was no constitutional authority for the annex- 
ation of foreign territory by treaty, and prepared the follow- 
ing draft of an amendment which was to be submitted to the 
States: "The province of Louisiana is incorporated with the 
United States, and made part thereof, the rights of occupancy 
in the soil and of self-government all confirmed to the Indian 
inhabitants as they now exist.-' Then, after creating a special 
constitution for the territory north of the thirty-second par- 
allel, reserving it for the Indians until a new amendment to 
the Constitution should give authority for white ownership, 
the draft provided for erecting the portion south of latitude 
32^ into a territorial government, and vesting the inhabitants 
with the rights of other territorial citizens.*^ 

This draft he sent to his Cabinet, but none of them consid- 
ered an amendment necessary. Jefferson was not ready to 
yield his views at once, and in August he proposed a new and 
briefer draft. '* His first," Mr. Adams says, was " almost a 

I AppM No. 826. 

■See Henry Adams'a History of the U. S. for extended aocouiit, Vol. ii, Chap, iv, v, vi ; 
Story, Vol. II, p. 168, note 1; Vol. i, p. 373, note 2; JeflVrson'a Works, Vol. iv, pp. 500, 504i 
505. For Federal opposition, nee Fislier Ames's WorkH, Vol. i, p. 323: Foster, Com. (»ii 
Const, 1, sec. 31, pp. 116-118. 

* Henry Adams, Hist. U. S., Vol. ii, pp. 86, 87. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 179 

constitution in itself." It read as- follows: "Article XIII. 
Looisiana, as ceded by France to the United States, is made a 
part of the United States; its white inhabitants shall be citi- 
zens and shall stand as to their rights and obligations on the 
same footing with other citizens of the United States in analo- 
gous situations, save only that as to the portion thereof lying 
north of an east and west line drawn through the mouth of 
Arkansas Eiver, no new State shall be established nor auy 
grant of land made, other than to Indians in exchange for 
equivalent portions of laud occupied by them, until an amend- 
ment to the Constitution shall be made for these purposes. 
Florida, also, whensoever it may be rightfully obtained, shall 
become a part of the United States; its white inhabitants 
shall thereupon be citizens, and shall stand as to their rights 
and obligations on the same footing with other citizens of the 
United States in analogous situations."^ 

Jefferson's party Mends and advisers considered that the 
introduction of an amendment would be inexpedient, and 
tried to dissuade him from urging such a change. Finally 
their efforts met with success. In a letter to Senator Nicholas 
of Virginia, Jefferson writes: "I confess I think it important 
in the present case to set an example against broad construc- 
tion by appealing for new power to the people. If, however, 
our friends shall think diff'erently, certainly I shall acquiesce 
with satisfaction, confiding that the good sense of our country 
will correct the evil of construction when it shall produce ill 
effects."* 

Nothing ftirther was heard of amendments from the Presi- 
dent, but Senator John Quincy Adams of Massachusetts, 
adhering to the views first set forth by Jefferson, after waiting 
in vain for some move from the Executive, finally, on the 25th 
of November, 1803, moved ''that a committee be appointed to 
inquire whether any, and if any, what further measures may 
be necessary for carrying into effect the treaty whereby Loui- 
siana was ceded to the United States."^ His motion tailed to 
be recorded, and the Senate unanimously laid it on the table. 



I Lalor, I, p. 609. Letter to Levi Lincoln of August 30, 1803. Works, Vol. iv, p. 504, 
505. 

' .4 dams, n, p. 91. See comm^itB of Judge T. M. Cooley on Jefferson's attitude, in pam- 
])hlet entitled Louisiana, p. 16. 

* Annals of Congress, Eighth Congress, first session, p. 106. Adams said the annex- 
ation was "an assumption of implied powers greater in its consequences than all the 
assumption of implied power in the twelve years of Washington's and Adams's adminis- 
trations put together." Cooley, Louisiana. 



180 AMERICAN HISTORICAL ASSOCIATION. 

93. ADMISSION OF ISTEW STATES. 

Only two other amendmentB have been offered relative to 
the admission of new States, except those presented in con- 
nection with the slavery question, which are treated under 
that subject.* The first of these was drawn up by the Hart- 
ford convention, and brought to the attention of Congress at 
the same time as the other amendments proposed by this 
assembly in 1815. This amendment stipulated that no new 
State should be admitted without the concurrence of two- 
thirds of both Houses of Congress.' 

The New England States doubtless believed that such an 
amendment was necessary for their protection, in view of the 
fact that by means of the votes of the members from the new 
States measures inimical to their interests could be pushed 
through Congress. This had been the case in 1812, when war 
had been declared contrary to the desire of a large majority 
of the people of New England.^ This series of resolutions, as 
introduced by Massachusetts and Connecticut members in 
obedience to the instructions of their respective legislatures, 
called out resolutions of disapproval from the legislatures of 
several of the other States.^ 

The second proposition was not presented until over half a 
century later, in 1871, and was designed to prevent the too 
early admission of new States. It provided that hereafter no 
Territory or District should be admitted as a State that did 
not contain a population that would entitle it to at least one 
Representative according to the ratio of representation at the 
time of its application for admission."^ 

> Post, par. 110. Even iii the Constitational Convention hoAtility was shown by some of 
the memberH to new States, and an attempt was made to restrict their representation in 
the National Legislature. Mr. Gerry gave formal expression to this hostility in his 
motion of July U : " That in order to secure the liberties of the States already confeder- 
ated, the nunilK'r of representatives in the first branch of the States, which shall here- 
after be established shall never exceed in number the representation fW>m such of the 
States as shall accede to this confederation." Elliot, v, p.310. Four States favored it, 
five opposed it, and one, Pennsylvania, was divided. 

* App., Nos. 426, 434, 442. Story, ii, p. 160, note 2. 

* For address of the Congressional minority, see Nilos' Register, ii, pp. 309-^15. 

« Ante, par. 22, p. 46. The house of representatives of Massachusetts, in 1844-1845, passed 
strong State rights resolutions against the admission of Texas. H. J., February 28. 
1845, p. 509. Foster, Com. on Const., i, p. 118. 

* App., No. 1341. In 1871, besideH Delaware there were of the new States Nebraska, 
Nevada, and Oregon which did not have a population eqaal to the representative ratio. 
According to the census of 1890, the population of Delaware, Idaho, Montana, Nevada, 
and Wyoming, respectively, did not equal the ratio of representation now in force, which 
is one for every 173,901 inhabitants of a State. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 181 

94. REPRESENTATION OF THE TERRITORIES AND THE DISTRICT OP 

COLUMBIA IN CONGRESS. 

Each Territory has loug been entitled to send a Delegate to 
the Honse of Eepresentatives, but he has no vote. In recent 
years. Delegates from the Territories have presented four dis- 
tinct proposals in Congress to give them voting members in 
the House of Representatives. No important action has been 
taken relative to any one of them J 

The District of Golumbia, although the seat of the Federal 
Oovernment and more populous than some States, has under 
the Oonstitution no share in the Presidential and Oongressional 
elections, and has not by law received even the privilege of 
sending a Delegate to Congress. One of the above-mentioned 
resolutions included the District of Columbia in its provisions.' 
As recently as 1888 Senator Blair introduced an amendment 
to give to the District representation in the two Houses of 
Congress and votes in the electoral conege.*"^ Since the admis- 
sion of six new States, in 1889 and 1890, the question of chang- 
ing the x)eculiar status of an inhabitant of the Territories is 
not now as urgent as formerly,^ but the problem in regard to 
the District of Columbia still confronts the nation. 

»5. DISPOSITION OF THE PCBLIC LANDS. 

It is somewhat remarkable that during the periods when the 
questions relating to the public lands were prominent in the 
deliberations of Congress, only one proposal was made to amend 
the Constitution relative to their disposal. 

When the legislature of Georgia, in 1833, petitioned Congress 
to call a convention to amend the Oonstitution, they included 
as one of the questions they desired to have considered, an 
amendment which should settle the ^^ right to and disx>osition 
of the public lands of the United States." * 

It was not, however, until the early seventies, after large 
tracts of the Government land had come into the possession of 



< App., Nos. 1348, 1394, 1454, 1510. No. 1394 also provided that each Territory should be 
entitled to choose one elector for President and Vice-President. 

s App., No. 1454. 

s App., No. 1726. The District should have as many electors for President and Vioe- 
President as it has members in Congress, but their representatives in Congresswere not to 
participate in Joint convention of the two Houses, nor in proceedings touching the choice 
of President and Vice-President, nor in the organization of either House of Congress. 

* Utah admitted in 1896. 

 App., No. 622. See letter of Governor Troup of Georgia to the Secretary of War, of 
June 3, 1825. Niles Begister, Vol. xxviii, p. 240; also, Von Hoist, U.S. Hist., Vol. i, pp. 
438-489. See post, par. 146. 



182 AMERICAN HISTORICAL ASSOCIATION. 

railroads and speculators, that any further amendments upon 
this subject were suggested. In 1871 Mr. Cogblan of Califor- 
nia proposed an amendment prohibiting the disposal of the 
public lands except to actual settlers.' The motion to suspend 
the rules and pass the resolution was lost. The following year 
Mr. Goghlan tendered the same resolution.^ The only other 
proposition to amend the Constitution in this particular was 
offered in this same year.^ The time is now passed when such 
an amendment would be productive of good, and it seems 
unlikely that the power of Congress *' to dispose of the territory 
and other property of the United States '' will be abridged. 

96. RELATION OF THE UNITED STATES WITH INDIVIDUALS. 

Under the head of personal relation, are without doubt the 
most important class of proposed constitutional amendments. 
As proof of this statement, it is only necessary to recall that all 
but two of the fifteen amendments that now form a part of the 
Constitution relate to the rights and duties of persons. 

Fii:st in point of time came that series of amendments which 
were added to the Constitution so soon after the organization 
of the Government "as to justify the statement that they were 
practically contemporaneous with the adoption of the origi- 
nal."^ These were dictated by the jealousy of the States, as 
" further express limitations upon possible i)owers of the Fed- 
eral (iovernment." 

Down to I860, a period of over sixty years, but few amend- 
ments were offered touching the relations of the General Gov- 
ernment with individuals, although during the greater part 
of this i)eriod a contest was going on over the institution of 
African slavery, between those who desired its curtailment and 
ultimate extinction and those who desired additional safe- 
guards for its security and perpetuation. It was only upon 
rare occasions and at infrequent intervals that either side trie<l 
to accomplish their end through an amendment. Doubtless 
all recognized the futility of such an attempt. 

It was therefore not until 1860 that any general movement 
was made still further to define the relation of the General 

> App., No. 1340. 

• App., No. 1357. 

* App.. No. 1350. Similar to Mr. Ooghlan's, fiave that granta of land might also he made 
for oommoii school education of the people of the respective States and Territoriee. 

^Slanghterhoime Cases, 16 Wall., 126. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 183 

Governmeut with tbe iudividaal. Then it was that au ava- 
lanche of propositions fell upon Congress, nrged on by a desire 
of preserving the Union, and with some hope that the country 
might possibly in such a crisis ratify an amendment. 

With the outbreak of the rebellion these proposals for the 
moment ceased, bnt the exigencies and results of the war soon 
gave rise to a new order of amendments. The provisions of 
some of these were incorporated in the thirteenth, fourteenth, 
and fifteenth amendments. ^' These reconstruction amend- 
ments," says Mr. Justice Swayne in his dissenting opinion in 
the Slaughterhouse cases, ''are a new departure and mark an 
important epoch in the constitutional history of the country. 
They trench directly upon the power of the States and deeply 
affect those bodies besides. They are in this respect at the 
opposite pole from tiie first series." * In the years since, amend- 
ments have been frequently presented still further to increase 
the power of the (ieneral Government in this sphere, in order 
to secure the better protection of the individual in the exercise 
of his civil and political rights. 

97. THE FIRST TEN AMENDMENTS. 

In many of the States opposition to the ratification of the 
Constitution was based upon the absence of specific reserva- 
tion of the rights of the people. The precedent of the great 
English declaratory statutes had been followed in the elaborate 
Bill of Eights which prefaced most of the State constitutions.' 
In vain did the friends of the Constitution urge that the Gen- 
eral Government was in its nature limited, and that all rights 
not expressly granted must be retained. The people did not 
feel secure in the enjoyment of life, liberty, and property with- 
out a written guaranty to protect them from encroachments 
of the General Governmeut. To this end one hundred and 
twenty-four articles of amendment were proposed by the seven 
conventions which suggested additions to the Constitution.' 
In this numerous series, in addition to the miscelianeous sng- 

 SlaughierliouRe CaseH, 16 Wall, 125. 

■Stevens, Sources of the Conatitntion of the United Statea, pp. 211-213. 

* Mosaachuaetts, amendmenta ; South Carolina, 4; New Hampshire, 12; Virginia, 20; 
New York, 32; North Carolina, 26; Rhmle iHland, 21. The Khode Inland aeriea was not 
paaaed until 1790, and hence only the 103 propositions passed by the other six conventions 
. were before Congress at the time ttiey drew up the 12 they sent out to the States. For 
admirable treatment of the origin of our Bill of Rights see Stevens, Chap, viii, also 
Story, I, pp. 211-213. App., Nos. 1-124. 



184 AMERICAN HISTORICAL ASSOCIATION. 

gestioDs treated elsewhere/ were included many specific gaar- 
anties of individaal rights. 

In response to this general demand, Mr. Madison, early in 
June, introduced in the first session of the First Congress a 
series of amendments embracing the most important of the 
propositions recommended by the different State conventions.^ 
The special committee of one from each State to whom the 
series was referred, reported them back in a modified form.^ 
After a long debate in the Committee of the Whole, during 
which many changes were proposed,* and not a few effected, 
sevcTiteen amendments finally passed the House of Eepresent- 
atives by the necessary two thirds majority.'* Two of these 
were rejected by the Senate, one affording i)rotection to the 
individual against a State infringing the rights of trial by 
jury, the right of conscience, freedom of speech and of the 
press,® and the other in regard to the distribution of power 
among the departments." 

The fact that an amendment protecting the individual from 
State encroachment was included in the series of amendments 
passed by the House would seem to indicate that the members 
of the First Congress considered the first ten amendments as 
binding only against the General Government. The question 
as to the extent of their application has frequently come before 
the United States Supreme Court, and that body has repeat- 
edly declared that the first ten amendments do not guarantee 
the individual against the State,^ 

The relnaining fifteen were by compression and modification 
in the Senate reduced to twelve.^ After a committee of con- 
ference had still further modified 3ome of the articles,^" the 
series of twelve received the approval of two-thirds of both 
Houses of Congress, and went out to the States for their rati- 
fication. Subsequently the series, except the two in regard to 



I Ante, pars. 9, 12, 13, 1 6, 18, 22, 28, 29, 30, 31, 66, 62, 63, 70, 73, 75, 77, 80. 86. 90. Pont, pars. 99. 
101, 103, 116, 137, 1H8, 152, 157, 158, 161, 162, 163. 164, 181. 

* App., Noe. 126-146. Story, I, p. 2U, note 3. 

3 App., Noa. 147, 148, 149, 154, 155, 158, 160, 165, 166, 169, 173, 177, 179, 181, 183, 188, 190, 198. 

* App., Nob. 147-214, also 231, 232, 234-240. 
« App., No«. 215-230, 233. 

cApp., No. 228. 

' App., No. 230; soe ante, par. 7. 

" As in the decision given in Barron v. Baltimore, 7 Peters, 243, an<l United States v. Cniok- 
8hank,92U.S.,542. 

* App., Koa. 220, 221, 227, 229, 242, 243, 254, 266, 288, 291, 292, 293. 
<• App., Nos. 205, 296, 297. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 185 

the apportiouinent and compensation of members of Congress,' 
were ratified by a safQcient number of the States, and the first 
ten amendments, or, as they are sometimes termed, the Ameri- 
can Bill of Rights, became part of the Constitution.^ 

98. DOCTRINAIRE PROPOSITIONS ON THE RIGHTS OF MAN. 

Of the varioas amendments proposed daring the considera- 
tion by Congress of this series of propositions, the greater 
part involved only slight change, and more often merely 
verbal. Several, however, are worthy of notice as showing 
the political philosophy of the day. Mr. Madison placed as 
the first amendment in the series presented by him an article 
defining the basis of power.' It provided "that there be pre- 
fixed to the Constitution a declaration that all power is origi- 
nally vested in, and consequently derived irom, the people. 
That government is. instituted and ought to be exercised for 
the benefit of the people; which consists in the enjoyment of 
life and liberty, with the right of acquiring and using prop- 
erty, and generally of pursuing and obtaining happiness and 
safety. That the people have an indubitable, inalienable, and 
indefeasible right to reform or change their Government, when- 
ever it may be found adverse or inadequate to the purposes of 
its institution." 

The committee reported a much briefer preamble, declaring 
that the government was derived from the people.* After 
being adopted in Committee of the Whole it was stricken out 
by the House. 



> App., No8. 243, 295. See ante para. 13, 22. 

> App., No. 297, for list of Staten ratifying. All the States except HaMaohnMtta, Con- 
necticQi, and Georgia acted favorably. In MaaaachusettA and Connectlcat the inflaenco 
of the Federalist leaden who bad foolishlj opposed the amendmenta in Congreaa pre- 
dominated. The Maasachusette legislature on a concurrent resolation, rejected the first, 
second, and twelfth amendments, and agreed to (he othera, and ordered the appointment of 
a committee to bring in a bill or resolve declaring their adoption. The committee does 
not seem to have reported, and finally action was not taken. Senate Jonmal, Massachu- 
setts, vol. 10, p. 192; Journals of tbeHonseof Representatives, Massachusetta, vol. 10, pp. 
168, 169, 209, 217, 218. At the same time a concurrent resolution was passed appointing a 
joint committee " to consider what further amendments are necessary to be added to the 
Federal Constitution and report." The coroutitt«e reported a series of twelve proposi- 
tions, inasmuch as they were "convinced that the people of this State, when they adopted 
the Constitution of the United -States, wished for and expected other and ftirther amend- 
ments than those which have been recommended, and that they are now anxious to have 
their liberties more explicitly secured to them." For reprint of the report, see the 
American Historical Review, Vol. ii. No. 1, pp. 99-105. "This group of ten amendments 
may, therefore, be regarded as a supplement or postscript to the original, and should not 
be regarded in the same category with the subsequent independent amendments." Report 
of New York State Bar Association, VoL xili, p. 139. 

«App., No. 127. 
4App., No. 147. 



186 AMERICAN HISTORICAL ASSOCIATION. 

Subsequently there were three attempts, when the amend- 
ments were being considered in the Senate, to add an additional 
paragraph containing sentiments similar to the preamble 
quoted from Mr. Madison, all of which, however, proved unsuc- 
cessful. That the social-compact theory was popular in that 
day is shown by one of these resolutions,^ which opens with 
the declaration that ** there are certain natural rights, of which 
men, when they form a social compact, can not deprive or 
divest their posterity, among which are the enjoyment of life 
and liberty,'' etc. Another declares that magistrates are the 
trustees and agents of the people, and are therefore ^'at all 
times amenable to them." * The third asserts that the Gov- 
ernment ought to be instituted for the common benefit and 
protection and security of the people, and that *' the doctrine 
of nonresistance against arbitrary power and oppression is 
absurd, slavish, and destructive of the good and happiness of 
mankind." ' 

Two further attempts were made in the Senate to add a fur- 
ther guaranty of individual liberty.* One of these proposed 
amendments declared that *' every freeman restrained of his 
liberty is entitled to a remedy, to inquire into the lawfulness 
thereof, and to remove the same, if unlawful, and that such 
remedy ought not to be denied or delayed.'' The other propo- 
sition was similar, only still more explicit. Both were rejected. 

W. TITLES OF NOBILITY. 

The provisions of the Constitution forbidding any person 
holding office under the United States Government, without 
the consent of Congress, from accepting any present or title 
from any king, prince, or foreign State did not seem sufficiently 
stringent to some of the State conventions.* The ratifying 
conventions of Massachusetts, New Hampshire, New York, 
and, later, Ehode Island,*^ proposed amendments either forbid- 
ding Congress from ever granting its consent, or for the accom- 
plishment of the same end proposed eliminating the clause 
"without the consent of Congress." A similar change was 
proposed in the Senate and twice in the House of the First 
Congress, during the discussion of the subject of amending 
the Constitution, but failed to meet the approval of either 



• App., No. 267 . ' * App. , Noa. 272, 273. 

^pp., No. 268. fi Connt.. Art. I, boo. 0, ol. 8. 

>App., No. 269. ^ App., Nos. 9, 22, 76, 118. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 187 

branch^ ^o further ameudments ou this subject were pre- 
sented uutil 1810. Early in that year Senator Keed of Mary- 
land introduced an amendment relative to the acceptance of 
titles of nobility by American citizens.'' 

The resolutions were referred to a select committee of three, 
and twice afterwards recommended to a larger committee, who 
iinally reported them in a modified form. Several amendments 
were presented during the debate, one of which was accepted. 
It was in these words: *'If any citizen of the United States 
shall accept, claim, receive, or retain any title of nobility or 
honor, or shall, without the consent of Congress, accept and 
retain any present, pension, office, or emolument of any kind 
whatever from any emperor, king, prince, or foreign jwwer, 
such person shall cease to be a citizen of the United States, 
and shall be incapable of holding any office of trust or profit 
under them or either of them.'' ^ Thus amended, the article 
passed the Senate by a vote of 19 yeas to 5 nays. The amend- 
ment was immediately considered in the House and passed by 
that body on the 1st day of May, only three votes being cast 
against it. 

Unfortunately, the Annals of Congress and contemporary 
newspapers do not give any of the debate upon this interesting 
proposition. The only light thrown upon the subject by the 
Annals is the remark of Mr. Macon, who said '^ he considered 
the vote on this question as deciding whether or not we were 
to have members of the Legion of Honor in this country."^ 
What event connected with our diplomatic or political history 
suggested the need of such an amendment is not now apparent.^ 



I App.. Nos. 203, 240, 263. 

* App., No. 299. 

* App., No. 399. 

* AnnalB of Congress, Eleventh Congresa, second session, p. 2050. The flies of four of' 
the leading papers of the time have been examined withont any additional light being 
thrown on the question. 

* It is possible that the presence of Jerome Bonaparte in this country a few years pre- 
vious, and his marriage to h Maryland lady, may hare suggested this measure. An article 
in Niles* Register (vol. Lxxii, p. 166), written many yc^ars after this event, refers to an amend- 
ment having been adopted to prevent any but a native-bom citizen from being President 
of the United States. This is of course a mistake, as the Constitution in its original 
form containfMl such a provision; but it may be possible that the circumstances referred 
to by the writer in Niles relate to the passage of this amendment through Congress in 
regard to titles of nobility. The article referred to maintains that at the time Jerome 
Bonaparte was in this country the Federalist party, as a political trick, aflfecting to appre- 
hend that Jerome might find his way to the Presidency through "French influence," pro- 
posed the amendment. They thought the Democratic party would oppose it as unnecessary, 
which would thus appear to the public as a further proof of their subserviency to French 
influence. " The Democrats, to avoid this imputation, concluded to carry the amendraeBt. 
'It o«a do no harm * was vhat reconciled it to alL" 



188 AMERICAN HISTORICAL ASSOCIATION. 

Possibly there was no particular event which suggested it, 
but it probably was only another means of expressing that 
animosity against foreigners and everything foreign, which 
manifested itself in various ways in the trying x)erio<l just 
previous to the war of 18I2J That the amendment was in 
the line of popular sentiment may be inferred, otherwise we 
can not account for the nearly unanimous vote it received 
in Congress and the favorable reception it met with from the 
States.2 

The amendment lacked only the vote of one Stat« of being 
adopted.^ It received the ratification of twelve States, and 
was passed by the Senate of South Carolina. It was generally 
supposed that the amendment had been concurred in by the 
requisite majority of the States. In the official edition of the 
Constitution of the United States, prepared for the use of 
the members of the House of Representatives of the Fifteenth 
Congress, the article appears as the thirteenth amendment to 
the Constitution."* This led to a resolution of inquiry,* as a 
result of which it was discovered that the house of repre- 
sentatives of South Carolina had not confirmed the action of 
the senate, and so the amendment had not been adopted.^ 
However, the general public continued to think that tbis 



1 1 am indebted to Professor McMaster for this saggeation. Good examples of the anti- 
foreign spirit ma}' be seen in the laws enacted at this time by sonin of the States. In 
Kentucky a bill prohibiting the citation of the decision of any British conrt or any 
British treatise on law was proposed. With difticiilty Henry Clay succeeded in obtain- 
ing an amendment limiting the restriction to sucli decisions as had been rendered, and to 
such works as had been written, since July 4, 1776. In this form it passed. In Pennsyl- 
vania a similar bill wa» introduced in 1809, and passed in 1810, and remained on the statute 
books for a generation. Schnrz, Life of Henry Clay, i, pp.4$M>0: McMaster, ili, pp. 
417-418. For other attacks on the system of English common law, see McMaster, ill, p. 
512. Another manifest-ation of the same spjrit was the action of the House of Represen 
tatives of the Commonwealth of Pennsylvania. February 10, 1814, by a vote of 47 to 38 
the House passed the following resolution: "Resolved, That this House dispense with 
the nae of the Mace.'* Journal of the 24th House of Representatives of Pennalyvania. 
(1813-14) pp. 283, 292, 309. 

* It passed both branches of the Legiilaiure of Pennsylvania unanimbusl}'. Journal 
of Senate of Penn. ( 1810-1 1 ) p. 180 ; Journal of House of Representatives pp. 290, 204. 

s See list given after App., No. 399. 

« Also given in Vol. I, p. 71 of "The Laws of the United States of America." Pfaila. 
and Washington, 1815. 

* Annala of Congress, Fifteenth (Congress, first session, p. 530; Kiles' Register, Vol. 
xiv, p. 160. 

* App., No. 399. Certifie<l copy of the proceedings of the State legislatore of South 
Carolina in Bureau of Rolls and Library. Department of State. The minnteH of the 
Houae of Representatives uf South Carolina do not state the reasons for their opposi- 
tion. Thus four 8tat«s rejected it, viz, New York, Connecticut, Rhode Island, and South 
Carolina. Virginia does not appear from the recorda in the State Department to have 
taken any action. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 189 

amendment had been adopted,^ and this misconception was 
perpetuated for over a third of a centory in editions of the 
Oonstitutiou and school histories.^ 

100. DUELING. 

Another attempt to regulate the behavior of American citi- 
zens by constitutional amendment arose out of the growth of 
public sentiment inimical to the practice of dueling; the first 
was presented in 1828, by Mr. Long of North Carolina, and 
was intended to prevent the practice of duelling.^ Ten years 
later two other resolutions were introduced. The reason for 
their presentation at this time is apparent. On the 24th of 
February, 1838, Jonathan Cilley, a member of Congress from 
Maine, was killed in a duel with William J. Graves of Ken- 
tucky, also a member of Congress. On the 6th of March, Mr. 
Morgan of Virginia introduced the first of these resolutions, 
restricting all who should be connected with a duel, even in- 
cluding the seconds or the bearer of the challenge, from hold- 
ing office.* The attempt to expel Graves from the House took 
place in the following December. Mr. Cushman of New Hamp- 
shire, a Northern man, offered a similar amendment.^ This was 
the last attempt to amend the Constitution in this particular. 

101. POOE KELIEF. 

The disposition to make the Constitution a code of laws 
reached the fullest expression in an amendment to invest the 
central Government with the power and duty of legislating 
for the care of the poor. This suggested a radical departure 
from the system then in use and since followed. This amend- 
ment was proposed by the convention which ratified the Con- 
stitution in lihode Island in 1790. It provided " that Congress 
should have power to establish a uniform rule of inhabitancy 
and settlement of the poor of the different States throughout 
the United States.'' « 



1 lUastration, see Niles' Regleter, Vol. xx, pp. 191, 255. 

* Illustrative of this, tho followiog : ' A History of the United States," by B. J. Olney, 
A.M., New Haven, 1836. " Constitution of the United States of America." Printed by 
Franris Hart& Co., (S3 Cortland street. New York. (No date.) "A History of the 
United States," by John Frost, Philadelphia, 1843. In " HiBtory of the United States, " 
by Bmma Willard, New York, 1829, it appears as the xv amendment. The first twelve 
sent out by the First Congress all beinf; given as if ratified. 

» App., No. 587. 

* App., No. 685. 
» App., No. 687. 
•App., No. 122. 



190 AMERICAN HISTORICAL ASSOCIATION. 

102. MARRIAGE AND DIVORCE. 

Less sweeping is a proponition affec*.tiug persoual rights and 
duties which arise out of the confusion caused by the different 
laws regulating marriage and divorce in the various States. 
At present a marriage in one State may be void in another; 
and serious complications arise as to inheritance and other 
questions. A national law for marriage and divorce is plainly 
unauthorized by the Constitution. In order to remove this 
difficulty, there have been five amendments proposed since 
1884 to give Congress power to pass uniform laws on these 
subjects.^ The proposition of Senator Dolph, in 1887, led to an 
interesting debate, but nothing was accomplished. In 1871 
there was an amendment presented by Mr. King of Missouri, 
which prohibited the intermarriage of persons of the white 
and colored races.^ From the preamble of this resolution it is 
evident that its author supposed that the States were deprived 
by the fourteenth amendment of the power to prohibit such 
marriages. The courts in general have not so held, and in 
several States mixed marriages are prohibited.^ 

103. HABEAS CORPUS, FREEDOM OF SPEECH AND OF THE PRESS. 

The proposed amendments of the last half century have, 
however, been directed rather to the increase and protection 
of personal rights and privileges than to their abridgment. 
Since the adoption of the Bill of Eights there have been but 
two attempts to add to the Constitution further guarantee in 
regard to the rights of the press and of free speech and of the 
right of the people to assemble and to be protected against 
the military power.* 

An effort to incorporate into the Constitution such a provi- 
sion was made by Senator Saulsbury of Delaware, April 8, 1864, 
when he presented a long series of amendments as a substitute 
for the thirteenth amendment, then under discussion. The 
larger portion of the amendments of this series related to slav- 
ery, but the first few were more properly general guaranties 



 App., Nos. 1605. 1609, 1656, 1688, 1736. Such an amendment reported adversely in Fifty- 
Hecond CongreHH, first session. Strong minority report. H. Rep., vol. 4, No. 1290. 

* App., No. 1339. See post, par. 172. 

* Cooley, Const. Law, p. 240, note 1 ; Hiiohoock. Am. State Const., pp. 26-27. Twelve States 
by statute, two in the constitution. 

* The New York convention proposed an amendment prohibiting the suspension of the 
habeas corpus for a longer time than six months or until twenty days after the meeting of 
the Congress next following the passing of the act for such suspension. App., No. 55. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 191 

of the rights of the individualJ The first declared the right 
of the people peaceably to assemble and worship God according 
to the dictates of their conscience. In this connection it is 
interesting to recall that this is the only amendment regularly 
introduced which proposed to insert the word God into the 
Constitution, although numerous petitions have been presented 
from various religious societies for some acknowledgment of 
God in the Constitution. The second of these amendments, 
while declaring that the use of the public press shall not be 
obstructed, provided that ^^ criminal publication made in one 
State against the lawful institution of another State shall not 
be allowed." In reality, therefore, this amendment offered no 
further guarantee of the freedom of the press, but, on the other 
hand, proposed placing restrictions upon the utterances against 
the institution of slavery. The remaining propositions declared 
that the right of free speech should not be denied ; that access 
of citizens to the ballot box should not be obstructed either by 
civil or military force; that the military shall always be sub- 
ordinate to the existing judicial authority over citizens; that 
the privilege of the writ of habeas corpus shall never be sus- 
pended in the presence of judicial authority, and that the 
militia of a. State or of the United States shall not be 6m- 
I)loyed to invade the lawful rights of the people of any of the 
several States. 

A very similar but even longer series of amendments was 
proposed by Senator Davis of Kentucky, an Old Line Whig, 
in December of this same year. He submitted these as the 
basis of all existing difficulties, and desired that they should 
be considered by a convention of the States which he proposed 
should be assembled ^'for the purpose of bringing about the 
restoration of peace and union and the vindication of the 
Constitution." ^ The resolution contained a series of detailed 
guaranties to the people not only of all the rights mentioned 
in the first ten amendments, but also of several other inherent 
rights and liberties of the people which had been and were 
being infringed by such acts as the suspension of the writ of 
habeas corpus, by the proclamation of the President and its 
subsequent approval by Congress, and the trial of citizens by 
military tribunals even in States distant from the seat of war, 
and certain other acts incidental to the exercise of the wai 



'App., NoH. 999-1002. 
' See po8t, par. 177. 



192 AMERICAN HISTORICAL ASSOCIATION. 

X)Ower.' It forbade all such invasion of the rights of the 
people, and declared that " the infraction of any of these rights 
and privileges shall be held to be both a grievous private 
wrong and a public crime, and all persous who may commit it 
to become infamous and to be further punished by law without 
pardon or commutation." 

These two series of amendments were evidently presented 
not with the expectation of their adoption, but rather as an 
arraignment of the President and the party in power and as a 
protest against the acts already mentioned. 

104. PROTECTION OF PERSONAL LIBERTY. 

Most of the propositions dealing with questions of personal 
relations up to the civil war were assertions of constitutional 
principles. At the close of the war another very important 
group commands our attention. These, for the most- part, con- 
cerned the method by which the principle of individual liberty 
might be secured from assault. The thirteenth amendment, 
conferring freedom upon all the slaves, will naturally be treated 
under the head of amendments affecting slavery.^ It was sui)- 
plemented by the fourteenth amendment, although the pro- 
visions contained in theiirstsection of this article, as interpreted 
by the courts, are not confined in their application to any one 
class of persons, yet inasmuch as it was simply intended to pro- 
tect the freeflmen, it will be considered under the same head as 
the thirteenth amendment. It seems convenient to mention in 
this connection the only amendment which has been proposed 
dealing expressly with the Indian. The legislature of Georgia 
included in the call issued by her in 1833 for a convention to 
amend the Constitution a clause calling for an amendment 
definitely settling the rights of the Indian.^ The need of such 



> App., Ko. 1088b. See ante, par. 83. It gaaranteed * ' the absolute right at all timee and 
under all conditiouB of the people to the writ of habeas corpus and to trial by jury ;" the 
exemption of all persona, except thono in the Army and Navy, from arrest and immunity 
Arom trial and examination by militar>' tribunals; that the military power was never to 
be brought into conflict with the civil authority, but should be employed to uphold the 
law and the court«. It guarant«H'd to the people at their elections the right tu vote for 
those whom they prefer without constraint or intimidation; to Ireely discuss and pro- 
nounce their opinion on all public measures and the conduct of public officers; to their 
right to all sources of information by the purchase and transmission of books, news- 
papers, etc., without any obstruction, and to free trade and commerce with their fellow- 
citizens; to protection in their private property, which was not to be taken except to 
subserve some operation of the Federal Ghovernment, and then to receive full compensation 
or indemnity, as well as for all damages sust^'vined by reason of the orders of the military 
officers of the United States. See Bryoe, i, pp. 54, 56. 

'Post, par. 123. 

*App.tNo. <I26. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 193 

an amendment had been suggested by Georgia's almost con- 
tinuous struggle with the United States courts over the rights 
of the Greek and the Gherokee nation. 

105. SLAVERY PROPOSITIONS BBFORB I860. 

Considering the long and violent legislative struggle o^er 
slavery, which lasted through a quarter of a century, it is 
remarkable that there were but few propositions to amend the 
Constitution in this respect before 1860. In addition to the 
amendment with regard to abolishing the representation tor 
the slave population, introduced just previous to 1808 and again 
in 1815, and the resolution of Massachusetts, presented in 1844, 
all of which have been dealt with elsewhere,^ there were a few 
others aimed either at the protection or abolition of slavery. 

As early as 1818 Mr. Livermore of New nam])shire intro- 
duced a resolution prohibiting slavery, which failed to receive 
the consideration of the House.^ 

Again, in 1839, J. Q. Adams tried to introduce a series of 
amendments abolishing hereditary slavery after 1842, forbid- 
ding the admission of slave States after 1845, and prohibiting 
slavery or the slave trade at the seat of government.^ {Shortly 
after the compromise of 1850 an unsuccessful attempt was made 
still further to protect the interests of the slavocracy by the 
proi)osirion of Mr. Daniel of North Carolina, that no amend- 
ment should be made abolishing or affecting slavery in any State 
without the concurrence of the slave States.* In the same year 
Mr. Disney of Ohio tried twice in vain to secure the consider- 
ation by the House of an amendment to the Constitution which 
asserted the rights of local government.* This was evidently 
prompted by a desire to insure the security of slavery, for it 
declared '^ that the people of every community have an inherent 
right to form their own domestic laws and to establish their 
own local government when they do not conflict with the Con- 
stitution," and, further, " that the will of the people of the 
District of Columbia ought at all times to govern the action 
of Congress in relation to the existence of slavery within its 
limits." ® 



1 Ante, par. 22. Sketch of the History of Slavery, by Cooley ; Story, ii, Chap. XLVi. 
« App., No. 474. 

* App., No8. 697, 608, 699. 

* App., No. 764. Cadwalader of Pennsylvania, on Deeciniber 15, 1856, gave notice of his 
intention to introduce a similar auienduiout. H. J., Thirty -fourth Congress, third ses- 
sion, p. 114. 

« App., No. 758. 

* Fur amendments liefore 1860 in re;;anl to aiding the colonization of freedmeu, see poet, 
par. 115. 

U. Doc. 353, pt 2 13 



194 AMERICAN HISTORICAL ASSOCIATION. 

106. SLAVERY PROPOSITIONS IN 1860-61. 

By the time of the opening of the second session of the 
Thirty-sixth Congress, in December of 1860, the condition of 
affairs was changed, and now amendments were freely offered, 
upward of two liundred being presented to Congress during 
this session. Tliese multifarious propositions will be treated 
according to their subject-matter; their chronological history 
may be briefly di8i)osed of.^ At the opening of the session 
President Buchanan recommended in his annual message three 
explanatory amendments to the Constitution on the subject of 
slavery.* The first of these was an express recognition of the 
right of property in slaves; the second declared the duty of 
protecting this right in the Territories, and the last, recognized 
the validity of the fugitive slave law. 

Nearly every prominent member of the Democratic party, 
especially from the Northern and border States, suggested 
amendments. No less than fifty-seven distinct resolutions 
were presented during this session of 1860-61. Some of them, 
in the eftbrt to find some common ground for compromise and 
conciliation, contained a long list of propositions dealing with 
almost every conceivable phase of the slavery question. 

The amendments introduced in the early part of the session 
varied from the propositions advanced by Jefferson Davis, for 
the express recognition and protection of property in slaves,' 
to those advocated by Senators Crittenden and Douglas, 
which, although conceding great rights to the slave States, 
were more in the nature of a compromise.* Several proposi- 
tions went to the length of insisting on a radical change in 
the form of government, to the end that the slaveholders might 
feel more security in the Union.* After the secession of South 
Carolina and some of her sister States, propositions for the 
amendment of the Constitution were even more numerous; 
that advocated by JSeuator Crittenden seemed the most likely 
to succeed, but it failed to receive the Republican vote and 
the South preferred to secede rather than to consider anything 



* An excellent r6aam6 of the hiHtory of this Conj^'ess maj bo found in Bhoiles, U. S., 
Vol. Ill, pp. 140-181; 253-271; 287-291; 305-308; 313-314. For a synopais of varioos bills 
and resolntions, see, also, McPhersou's History of the Rebellion, pp. 48-90. 

«App., Nos. 778, 780. 
»App.,No.851. 

* App., Nos. 827-833 and 836-850 ; 852a-h, 809ar-ni. See Foster, Com. on Const., i, pp. 109^ 
178. 

* Ante, pars. 34, 48. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 1 95 

that was not adopted by nearly a ananimous vote.^ lu tlie last 
days of February the amendments proposed by the peace con- 
gress, called at the request of Virginia, were presented to Con- 
gress.' Some of their main provisions were similar to those of 
the Crittenden compromise, in that slavery should be prohibited 
north of the parallels of 36^ 30', and recoguized and never inter- 
fered with by Congress south of that line, and that the Federal 
Government was to pay for slaves rescued from officers; but 
it made further concessions to Southern demands. Congress 
was unable to agree on any of these measures, and the utmost 
that could be obtained was the comparatively colorless Corwin 
amendment.^ 

107. PROPOSITIONS OR LIMITATIONS ON ABOLITION. 

A numerous class of amendments were intended to prevent 
the abolition of slavery anywhere by national authority.* The 
end was tobe accomplished in one ofthe following ways: (1) By 
an express recognition of the right of property in slaves, like 
the amendment proposed by President Buchanan ^ in his annual 
message at the opening of the Congress. Other amendments 
of a similar nature were introduced by Senators Powell and 
Jefferson Davis and Congressman Hindman of Arkansas.^ 

(2) By declaring either that Congress should have no juris- 
diction over slavery, or that Congress should not interfere with 
slavery within the States, or that the regulations of the right 
to labor or service in any of the States was exclusively the right 
of each State.' The Crittenden amendment and the peace con- 
vention resolutions contained such articles. In most cases 
these propositions were simply one of a series of amendments, 
and were usually accompanied by a provision that this article, 
together with certain of those accompanying it, should be una- 
mendable. For some time no agreement was reached. Finally 
the House select committee of thirty-three reported, February 
27, 1861, a resolution which read as follows: ^ "Xo amendment 

I Rhodes, U. S., iii, pp. 260-265. See Chittenden's Debates and Proceedings of the Peace 
Convention. Foster, Com. on Const., I, p. 174 et seq. 

* App., No. 917. 

s App., No. 931 ; post, par. 107. 
*App.. NoH, 77&-970. 
•App., No. 778. 
«App.,No9 782,805,851. 

» App., Nod. 790, 801, 827, 833, 850, 852g, 853, 869, 869c, 874k, 876, 894, 897, 913, 917, 919, 928, 935, 
950, 957. 969. 

* As a part of their report. There were iivo propositions In all, but this was the only 
one to amend the Constitution. St'<< MrPht^rsou, pp. 57-fl2. Several ha<l 8uj;;jt'8ted thia 
amendment, l)ec(*mlK>r 24, in the Senate committee of thirteen and it was agreed to by 
them. Journal of the committee, p. 11. 



196 AMERICAN HISTORICAL ASSOCIATION. 

of this Constitutiou having for its object any interference within 
the States with the relation between their citizens and those 
described in section 2 of the first article of the Constitution 
as 'all other persons' shall originate with any State that does 
not recognize that relation within its own limits, or shall be 
valid without the assent of every one of the States composing 
the Union." ' Mr. Corwin of Ohio immediately moved a sub- 
stitute, which was accepted, but the resolution as amended was 
then rejected. The following day the vote was reconsidered, 
and the Corwin amendment passed by a vote of 133 to 05, in 
the following terms : '^ No amendment shall be made to the Con- 
stitution which will authorize or give to Congress the power to 
abolish or to interfere, within any State, with the domestic insti- 
tutions thereof, including that of persons held to labor or service 
by the laws of said State." '^ When the Corwin resolution came 
up in the Senate, Senator Pugh of Ohio moved to substitute 
his resolution containing a series of seven articles and with a 
few exceptions covering nearly the same ground as the peace 
convention amendments.^ Then Mr. Doolittle of Wisconsin 
presented as a substitute a resoluti(m declaring that no State 
shall have power to secede, and asserting that the laws of the 
United States shall be supreme.^ Three other resolutions were 
proposed, one of these being the series of the peace conven- 
tion, and another authorizing the calling of a constitutional 
convention; but they all failed.* March 2 the amendment 
passed by a vote of 24 yeas to 12 nays,^ the exact constitu- 
tional majority, and on the same day received the unnecessary 
approval of the President.^ Only three States seem to have 
ratified it, Ohio and Maryland through their legislatures, and 
Illinois through a constitutional convention.^ In the New 
England States it was rejected, and many others did not act 
upon it.^ It was not regarded as a sulVicient concession to hold 
the Southern States which had not as yet seceded, much less 



' Proposed by Charles Francis Adams in committee. See Blaine, i, p. 260-1168. 

»App.,No.931. 

»App., No.942. 

* App., Xo8. 952, 953. 

«App., Xos. 954, 955-905. 

*ln reality on the 3d of March, Sunday. Mr. Trumbull raised the point of order that 
two-thirds of all the Senators had not voted in the affirmative, but the Chair held, and 
was sustained, that only two-thirds of those present was necessary. See post, par. 183. 

'See post, par. 184. 

»App., Xo.931. Ohio, May 13,1861; Maryland, January 10,1862; Illinois, February 14. 
1862. The latter is the only case of a convention being held to ratify an amendment to 
the Federal Constitution. Was it vjilid ? S«"e post. par. 170. 

'Stated upon the authority of Blaine, Twenty i'ears in Congress, i, pp. 266-267. 



l>ROPOSfiD AMENDMENTS TO THE CONSTITUTION. 197 

to win back those whicli had already taken that actiou. Other 
Northern States would have undoubtedly ratified it, if it had 
promised to stay secession, but the rapid approach of the civil 
war put it out of the public mind J It is interesting to note, in 
this connection, that nearly three years later, February 8, 1804, 
Senator Anthony of Khode Island introduced a resolution to 
repeal this joint resolution. The motion was referred to the 
Committee on the Judiciary, who were some months later dis- 
charged from its further consideration, and the entire matter 
was dropped.^ 

Just after the opening of the Thirty-seventh Congress, in 
July, 18G1, Senator Saulsbury of Delaware presented a series 
of amendments "for the peaceable adjustment of national 
difficulties."^ They were substantially the " Crittenden reso- 
lutions." Nearly a month later the Senate refused to consider 
them. Again, in 1864, Mr. Saulsbury included among the 
amendments offered by him as a substitute for the thirteenth 
amendment an article that the slave States south of 36° 30' 
should regulate for themselves the question of slavery.** In 
this same year Mr. Davis proposed in a somewhat similar series 
of amendments a proposition that each State should have the 
exclusive right over its local and domestic institutions.* 

(3) In addition to a few amendments proposing radical 
changes in the form of government, an amendment was pre- 
sented by Mr. Hindman of Arkansas, in 1860, which, in addi- 
tion to other guaranties, called for such provisions as will 
secure to the slaveholding States, through their representa- 
tives in Congress, an absolute negative upon all action of Con- 
gress relating to the subject of slavery, and such amendments 
shall forever be unaraendable.^ Possibly this proposition sug- 
gested the amendment presented some two months later by 
Mr. Vallandigham, providing that a majority from each section 
shall be necessary for the passage of a bill.^ 



I RhotleH, United States, iii, pp. 313-314. Rboilcs thinks but for the outbreak or the 
war it would have been adopted. 

' App., No. 1025. It would Hoem to be extremely doubtful whether Congress could recall 
an amendment when it has ouce been submitted. Jumeson, Const. Conv., p. 634; ])ost, 
par. 180, note. 

'App., No. 971. Senate refused to consider it by a vote of 11 to 24. 

«App., No. 1007. 

»App.,No.l039f. 

•App., N08.8O.5-8II. 

^App., No. 902. The same .seems to have been introduced by him in 1862. See ante, 
par. 80. 



198 AMERICAN HISTORICAL ASdOCXATlOK. 

108. FUGITIVE SLAVES. 

The amendments relative to abolition had little likelihood of 
passing, because the danger of interference by the General 
Government with slavery in the States seemed remote, bntthe 
propositions for the return of fugitive slaves deserve more care- 
ful attention. The experience of the country since 1850 showed 
that the Constitution as it stood did not secure the recovery of 
fugitives. The Southerners in the earlier days had maintained 
that there was no need of an amendment, since the Constitution 
already had a provision on the subject, but they bitterly com- 
plained that the law framed in 1793 to carry out this provision 
was not enforced^* As a part of the compromise of 1850 a more 
effectual law for the return of fugitive slaves was passed.^ 
The act was so far out of sympathy with the usual methods of 
trial in the Northern States that its execution was resisted by 
able constitutional arguments, by forcible rescues,^ and by a 
series of State enactments, the well-known "Personal liberty 
bills."^ The Southern States felt and made much of these 
undeniable grievances. 

(1) Among thenumerous amendments presented in thesession 
of 1860-61, some thirty-three amendments were proposed on the 
subject of fugitive slaves.* Subsequently others were intro- 
duced by Mr. Saulsbury later in 1861, and again, in the series 
offered by him as a substitute to the thirteenth amendment, 
in 1864.^ Most of these amendments were intended to give a 
definite guaranty to the South that the right to the return of 
their slaves should not be infringed. The first method to secure 
this end was to declare the fugitive slave law superior to State 
constitutions or enactments. Such was the proposition em- 
bodied by President Buchanan in his annual message of Decem- 
ber 4, I860.' Congress was urged to submit to the States an 
amendment asserting the "right of the master to have his slave 



> See rcsolations of Georgia in 1840. Senate Journal, pp. 215-236. T his was occasioned 
by the controversies between Georgia and Maine, New York and Virginia. For details 
see Niles' Register, Ull, 71-72; LV,556; LVi,215; LVii,272; ux, 374, 404; LX,55,60, 89, 70, 
90, 150-152; LXI, 241, 572, 385; LXII, 86, 112, 117. Senate Joomal (1842), 145. 146. 

* A person claimed as a fugitive slave M-as to be returned withont trial by jnry or 
appearance before a Judge, but simply on the certificate of a commissioner; and the fee 
was $10 if the slave was remanded and only $5 if he was declared a free man. 

*McI>ongaIl, Fugitive Slaves, Chap. iv. 

* Jhid,, Chap, y ; McPherson, pp. 44-47. 

* App., Xos. 780, 787, 789, 794, 802, 803, 809, 817, 833, 849, 852g. 860, 868, 860g, 872, 874g, 874k, 
881. 886, 888, 889, 894, 89R, 914, 920, 927. 937, 939, 940, 950, 962, 964, 967, 971d, 971g, 971h. 

« App., Nos. 1008, 1012, 1013. 
'App., No. 780. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 199* 

who has escaped from oDe State to another restored and deliv- 
ered up tahim, and of the validity of the fugitive slave law en- 
acted for this purpose, together with a declaration that all State 
laws in passilig or defeating this right are violations of the Con- 
stitution, and are consequently null and void." In harmony 
with this recommendation, various amendments were shortly 
proposed. Some of these, as that introduced by Mr. Kellogg 
of Illinois, expressly empowered Congress to pass ln^s neces- 
sary to secure the return of fugitives.* 

The executives of Northern States had refused to comply 
with a requisition for the extradition of men accused of assist- 
ing slaves to escape, on the ground that the act alleged was 
not considered a crime in a free State. To meet this difficulty, 
some of these propositions, like that oflTered by Mr. Etheridge 
and Mr. Pugh of Ohio, asserted that the laws of the State 
from which persons flee shall be the test of criminality.'-* One, 
introduced by Mr. Hindman,^ proposed to enforce the return 
of fugitives by providing that "any State whose legislature 
has enacted, or may hereafter enact, laws defeating or impair- 
ing the right of the master to have his escaped slave delivered 
up to him (according to the provisions of the fugitive slave 
law of 1850) shall not be entitled to representation in either 
House of Congress until the repeal of such nullifying statutes." 

(2) Another class of amendments proposed to insure the 
rights of the slaveowner by making compensation for fugi- 
tives that might be lost by reason of the legislation of any 
State or the act of its constituted authorities, or by the rescue of 
the fugitive, or by intimidation. Thus Crittenden and Douglas 
proposed that Congress should have power to enact laws re- 
quiring the United States to pay to owners who should apply 
for it, the full value of their fugitives in all cases when they are 
unable to recover them by the marshal being unable to arrest by 
reason of violence or intimidation.* The United States should 
have a right in its own name to sue the county in which the 
violence was committed, and the county in turn might sue and 
recover from the wrongdoers. Another variation provided for 
payment by the State.* Andrew Johnson of Tennessee insisted 
on an "explicit declaration in the Constitution that it is the duty 
of each State for itself to return fugitive slaves when demanded 
by the pro[)er authority or i)ay double their cash value out 



1 A pp., Xos. 898, 914. * App. , Noa. 832, 849, 852f, 869j ; also 874g, 971g. 
» A pp. , X(i8. 860, 945. « App., No. 794. 
> App., No. 809. 



200 AMERICAN HISTORICAL ASSOCIATION. 

of the treasury of the State." ^ Mr. English of Indiana also 
offered an amendment requiring, that whenever a fugitive slave 
was rescued, the city, county, or township in which such res- 
cue was made should be liable to the master in double the value 
of the slave.* Still others, like that proposed by Mr. Clemens 
of Virginia, gave the United States the right to impose a tax 
on the county or city in which a fugitive slave was rescued by 
violence as pay for the same, and the city or county had the 
right to sue the wrongdoers.' 

(3) On the other hand, a few amendments were offered look- 
ing to an amelioration of the act of 1850. To meet the criti- 
cism directed against the fugitive slave law of 1850, that the 
fugitive was not given the benefit of a trial by jury, Mr. 
Florence of Pennsylvania introduced two articles,* one pro- 
viding that " an alleged fugitive, on request, shall have a trial 
l>y j'lry at the place to which he may be returned;" the 
second provided "in case such person claimed to be a citizen 
of another State, he should have the right of appeal, or of a 
writ of error to the Supreme Court of the United States." 

The series presented by Mr. Saulsbury of Delaware, April, 
1864, as a substitute for the thirteenth amendment, in addition 
to the sections prohibiting a State passing any law interfering 
or obstructing the recovery of fugitives, contained a proposi- 
tion similar to that of Mr. Florence, save that the article was 
a little more favorable to the fugitive, inasmuch as it stipu- 
lated that the fugitive, on request, should have a trial by jury 
before being returned.^ 

It is almost needless to add that there was not the slightest 
hope that any of the three classes of amendments would be 
adopted. A compromise was no longer possible. The ques- 
tion of slavery could be solved only by its destruction, which 
was accomplished by the civil war.^ 

» App., No. 817. 
» App., No. 802. 
» App., No. 927. 

* App., No8. 888, 889. 

* App., Nob. 1012, 1013. Same in his proposition in 1801. App., No. 971d. In this same 
year Mr. Sumner proposed an amendment to strike oat the third paragraph of the sec- 
ond section of the fourth article. App., No. 986b. 

* There is reason, however, to think that the Northern Statues would have withdrawn 
their objectionable act« if there had been reason to think that this action would have 
kept the Southern States from secession. Rhodes, History of the United States, iii, pp. 
147-148, 252-253, notes ; McPherson, History of the Rebellion, pp. 44-47. On December 17, 
1860. Mr. Adrian's resolution recommending the repeal of all statutes, including i>eraonal 
liberty bills, so called, enacted by State legislatures which were in violation of the Con* 
Btitution, passed the House of Representatives by a vote of 154 to 14. McPherson, p. 75. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 201 

109. SLAVERY IN THE TERRITORIES. 

More promising at the beginning of the session of 1860-61, 
was the advocacy of amendments affecting the status of slav- 
ery in the Territories. All other slavery questions were by 
comparison insignificant. In the Territories appeared in its 
clearest form, the essential diflBculty which divided the Union, 
the existence of a slaveholding section and a free section 
united under one government. Three att.empts had been made 
to settle the question by law — in the compromises of 1820 and 
1850, and the Kansas-Nebraska bill. One attempt had been 
made to settle it by judicial construction of the law in the 
Dred Scott decision.' If it could not be settled by constitu- 
tional amendment there was no hope of an agreement. 

Among the amendments attempting to surmount the trouble 
and to preserve the Union, by far the largest group were those 
which had reference to slavery in the Territories and the Dis- 
trict of Columbia. 

(1) A considerable class made provision for a geographical 
division of the Territories, most of them by the parallel of 
360 30' north latitude; slavery to be forbidden in all the Ter- 
ritories north of said division line, and to be permitted in the 
region south of said line; but a Territory of either section, 
when ready to enter the Union, was to be admitted with or 
without slavery, as its constitution should prescribe. Such 
amendments were introduced by Messrs. Crittenden, English, 
Johnson of Tennessee, Kellogg of Illinois, and Clemens of 
Virginia, and appeared also in the series framed by the peace 
convention.* They fairly represent the sentiment of the mod- 
erate men from the North and from the so-called border States. 
Some of the propositions stipulated that "persons held to serv- 
ice or labor" might be taken into any Territory south of 36^ 30', 
and the right to such service should not be impaired ; but they 
should not be taken into any Territory of the United States 
while in a Territorial condition north of 36^ 30'.^ 

As late as 1864, Senator Saulsbury introduced, in his series 
offered as a substitute for the thirteenth amendment, a provi- 
sion in regard to slavery in the Territories south of 36° 30'. 

(2) The doctrine of the "extension of the Constitution" to 
the Territories was set forth in another class, of which the 



» Scott V. Sandford, 19 How., 393. 

« App., No8. 784. 796, 800, 816, 827, 832a, 858, 864, 874a, 875, 894, 896, 912, 917, 918, 923, 932, 942, 
955,971. 
»App.,No.887. 



202 AMERICAN HISTORICAL ASSOCtATIO!^. 

recomtnendations of President Buchanan is typical. The Con- 
stitution was to be so amended that it shoald be the duty of Con- 
gress to protect the rights of slavery in a]l the Territories.* 
Others would have reached the same end by prohibiting Con- 
gress from making any regulation impairing the right of prop- 
erty in slaves in the Territories. Other amendments, like that 
introduced by Mr. Yallindigham, declared the equal right of 
any person from any section to migrate to the Territories, and 
forbade the impairment of the rights of either person or prop- 
erty in the Territories.* 

(3) Senator Douglas brought forward his favorite principle 
of ])opular sovereignty in the proposition that Congress should 
make no law in respect to slavery in any Territory, but the 
status of each Territory in respect to servitude should remain 
unchanged until it reached a population of 50,000 whites.^ 
Other sections of this same resolution made applicable to the 
Territories the clause of the Constitution in regard to fugitives 
from justice, and also extended the jurisdiction of the United 
States judicial power over the same. 

(4) The principle of the Dred Scott decision was represented 
in a proposition forbidding the Territorial legislature, as well 
as Congress, from making any law respecting slavery.* 

110, ADMISSION OF STATES. 

Most of the articles to amend the Constitution contained a 
section which provided for the admission of the Territories 
into the Union, whether north or south of the dividing par- 
allel, whenever they had fulfilled the conditions necessary for 
admission, with or without slavery, as their constitution should 
provide,* or limitations were sometimes added as in the series 
of amendments introduced by Mr. Florence of Pennsylvania, 
December 18, 1860. He provided that no new State should be 
admitted without the consent of two-thirds of all the members 
of both branches of Congress,^ the yeas and nays being entered 



' App., No. 1003. 

*App., No. 906. 

"App., No. 836. Also similar provision in other proposition Babniitt<Ml by him. App.. 
Nob. 860ii, 860ra. The latter declared that ** all Territoriul governmonts Hhall be formed 
on the model and in the terms of the organic acts, approved September 9, 1850, called 
'the compromise measures.'" 

* App., Nos. 790, 792, 851, 871. 

* App., Nos. 797, 800, 807, 823, 828. 862b, 858, 864, 869b, 874b, 877, 894b, 896, 912, 918, 923, 933, 
942,971. In 1864 Mr. Saulsbur^- presented the same in his substitute resolutions for the 
thirt'Conth amendment. App., No. 1005. 

* Like the Hartford convention amendment, ante, par. 93. 



tROPOSEt) AMENDMENTS TO THE CONSTITUTION. 203 

on the journals. If such bill should be vetoed by the Presi- 
dent it should require a three-fourths vote of all the members 
to pass it. ^ 

Later, Mr. Florence introduced a proposition simply provid- 
ing for the admission of a State when it had fulfilled the condi- 
tions, with or without slavery, as its constitution should direct, 
and it further provided that if the President refused to admit 
such Territory as a State this article should not deprive Con- 
gress of the power to admit such State.* As has been previ- 
ously stated, the amendment introduced by Mr. Douglas pro- 
vided that the status of each Territory in respect to servitude 
should remain unchanged until the Territory should have a 
population of 50,000 white inhabitants. When this number 
was secured, the white male citizens should proceed to form a 
constitutional government for themselves, and exercise all the 
rights of self government. And such new State should be enti- 
tled to one Delegate in the Senate, to be chosen by the legis- 
lature, and one Delegate in the House, to be chosen by the 
people. When such new State should contain the requisite 
population for a member of Congress, it should be admitted into 
the Union on an equal footing with the original States, with 
or without slavery, as its constitution should provide at the time 
of its admission.^ 

111. ACQUIREMENT OF NEW TERRITORY. 

Other rections of the article just previously mentioned, as 
introduced by Mr. Douglas, prohibited the acquirement by 
the United States of any more territory, except by treaty or 
by the concurrent vote of two-thirds of each House of Congress. 
The occurrence of a case like that of New Mexico was to be 
guarded against by the provision that in the event of the an- 
nexation of new territory. "The status thereof in respect to 
servitude shall remain the same as at the time of its acquisition, 
until it shall be formed into a new State." But the annexation 
of Cuba was distinctly intimated in the clause : " The area of all 
new States are to be as nearly uniform in size as practicable, 
and shall not be less than 60,000 nor more than 80,000 square 
miles, except in case of islands.^ ^ 

» App., No. 826. 
« App., No. 877. 

* App., No. 837. No. 860b. nimilar to the latter provision, introdnced by Mr. Dongias. 
^ App., No0. 839, 840. An ameudment Hiniilar to the first part of the foregoing was intro- 
dnced by Mr. Etheridge of Tennesaee shortly after this. App., No. 859. 



204 AMERICAN HISTORICAL ASSOCIATION. 

Messrs. Cochrane and Kellogg also suggested an amendment 
restricting the ac(|aiaition of any iuore territory ej:cept by 
treaty ratitied by a vote of twotbirds of the Senate.* February 
27, 1861, the peace convention aniendnientH were submitted to 
Congress. One section in the series stipulated that no territory 
should be acquired by the United States, except by discovery 
and for naval and commercial stations, without the concur- 
rence of a majority of all the Senators from the slave States 
and free States, respectively; nor should territory be acquired 
by treaty unless the vote of a majority of Senators for each 
class of States be cast as a part of the two- thirds necessary.^ 
Subsequently the amendments proposed by the peace conven- 
tion were reintroduced in the Senate at three different times. ^ 

112. THE DISTRICT OF COLUMBIA AND PLACES Uia)ER FEDERAL 

JURISDICTION. 

Another phase of the '^irrepressible conflict" over territory 
was brought out in the numerous amendments introduced at 
this time relative to slavery in the District of Columbia and 
other })laces under Federal jurisdiction situated within the 
States.* The larger number of these amendments provided 
that Congress should have no power to abolish slavery in the 
District so long as it should exist in Virginia and Maryland, nor 
even then without the consent of the inhabitants, nor without 
making just compensation to the owners of slaves. It was 
usually further stipulated that Congress should not prohibit 
oflScers of the Federal (lovernment or members of Congress 
whose duties required them to be in the District from bringing 
their slaves within said District, and holding them as such 
during the time these duties recjuired them to remain there, 
and afterwards taking them from the District. Such amend- 
ments were proposed by Crittenden, Douglas, Florence, and 
Clemens. One of the amendments offered by Senator Sauls- 
bury, in 1864, forbade slavery in the District of Columbia, but 
permitted persons to sojourn there with slaves. Others for- 
bade Congress to interfere with slavery without the consent 
of Maryland.^ Another proposed that the exclusive power to 
regulate or abolish the right to labor or service for life in the 



> App., Nos. 874a, 916. 
»App., No. 917. 
» App., No8. 934, 956, 969. 

* App., Nos. 799, 806, 819. 830. 846, 852cl. 855, 866, 869d, 874f. 880, 894, 917, 925, 935, 944, 957, 909, 
971b. 
•App., No. 917. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 205 

District of Columbia should be ceded to the State of Mary- 
land, to be exercised in common with such rights in that 
State, subject, nevertheless, to the Jtidicial jurisdiction of the 
District.^ 

The amendments of the peace convention further declared 
**that the bringing into the District of Columbia of such per- 
sons for sale, or placing them in depots to be afterwards trans- 
ferred to other places for sale as merchandise, is prohibited."^ 

Another considerable class of amendments, besides prohibit- 
ing the abolition of slavery in the District of Columbia, further 
forbade Congress to prohibit slavery from existing in the arse- 
nals, navy-yards, dockyards, forts, or other places under its 
exclusive jurisdiction within the limits of States that permit 
the holding of slaves.^ Such a provision was included in the 
peace convention amendments, as well as in those of Critten- 
den, Johnson, Douglas, Florence, and others. Mr. Hindman of 
Arkansas would have changed the prohibition into a require- 
ment that the Federal Government should protect property in 
slaves wherever the Federal jurisdiction extends.* 

113. RIGHT OF TRANSIT WITH SLAVES. 

Troublesome questions had arisen out of the fact that slaves 
brought by their masters into free States or in transit through 
free territory were often liberated. To meet the case, four 
amendments were introduced guaranteeing the rights of mas- 
ters or owners to their slaves while sojourning in or in transit 
through any State or Territory of the United States. * 

Three of these amendments were presented December 12, 
1860. The remaining one was introduced by Mr. Florence, in 
January, 1861. At the same time he offered an amendment 
which declared that citizens of any State sojourning in another 
State should not be subject to violence or punishment, nor be 
injured in their persons or property without trial by jury and 
due process of law.^ In the series of amendments oflered by 
Mr. Saulsbnr^', in 1864, as a substitute for the thirteenth 
amendment, was a proposition to allow the right of transit 
with slaves south of 36^ 30', but not north of said line."' 



' Mr. Florence, January 28, 1861, App., No. 880. 

« App., No. 917. 

s App., Noa. 799, 806, 818, 829, 845, 852d, 865, 869d, 874f, 894, 917, 924, 936, 943, 958, 969, 971c. 

* App., No. 806. 

» App.. No8. 788, 793, 808, 882. 

* App., No. 885. 
» App., No. 1009, 



206 AMERICAN HISTORICAL ASSOCIATION. 

114. SLAVE INSURRECTIONS AND CONSPIRACIES. 

Another of the series which Mr. Florence proposed declared 
that all acts of any inhabitant of the United States tending to 
incite slaves to insurrection or action of domestic violence, or 
to abscond, should be considered contrary to law and as penal 
offenses.' Near the close of the session a somewhat different 
amendment was included in the series of propositions pre- 
sented by Senator Pugh of Ohio and Senator Powell of Ken- 
tucky.^ It declared that ^^ Congress shall pass efficient laws 
for the punishment of all persons in any of the States who 
shall in any manner aid and abet invasion or insurrection 
in any other State." In 1864 Mr. Saulsbury included in the 
resolution offiered as a substitute for the thirteenth amend- 
ment this identical proposition coupled with another which 
declared that all conspiracies in any State to interfere with 
lawful rights in any other State or against the United States 
should be suppressed.^ These measures were naturally sug- 
gested by the insurrection at Harpers Ferry under John 
Brown, in October, 1859. 

115. COLONIZATION OP FREE NEGROES. 

The project of mitigating the evil of slavery and eventually 
of its abolition through the colonization of negroes had been a 
favorite scheme ever since the early years of the century, when 
" colonization societies " were established. This plan was espe- 
cially urged by those philanthropists wbo were opposed to 
extreme measures. The Southern men likewise were not as a 
rule averse to the movement, for the presence of free negroes 
among them was undesirable.^ It is not surprising, therefore, 
that during the discussion of the question of the constitution- 
ality of Congress granting aid to the colonization movement, 
in the Twenty-second Congress, the proposal was twice made 
that the Constitution should be amended so as to give Congress 
the express power to assist the colonization of negroes.* 

The first of these resolutions, introduced by Mr. Archer of 
Virginia, proposed the expediency of amending the Constitu- 
tion so as to empower Congress "to appropriate the revenue 



> App., No. 885. 

*App., No8. 948, 968. 

*App., Nos. 1014, 1015. 

« Von Hol»t, U. S. Hist., I, pp. 329-333 ; Rhodes, Hist of U. S., I, pp. 881-382. 

* Georgia and some of the Gulf States passed resolations against Congress aiding oolo- 
nization societies. Sei^ Niles' Register, xxxyii,p. 128. Between 1823-1825 Ohio and seven 
other States passed resolations in favor of colonization or gradual emancipation. Jours, 
of house and senate of Fenn. (1823-1826), in passim. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 207 

accruing from the proceeds of the sale of the public lands," in 
part/ "in the aid of the removal of such portion of the colored 
population of the States as they may respectively ask aid in 
removing, on such conditions and to such places as may be 
mutually agreed upon."^ The remainder of the resolution 
authorized Congress to acquire suitable territory and to gov- 
ern the same as Territories for such time as is necessary, after 
which the Territory should be established into a State or States 
independent of the United States and never should be admitted 
into the Union.^ 

The second resolution came from the legislature of Maryland, 
which State had been especially prominent in favoring the 
colonization movement. This resolution called for govern- 
mental aid "in the removal of the free people of color from the 
United States, if deemed in accordance with the Constitution ; " 
and, if not, for such " an amendment to the Constitution as shall 
enable Congress to make such appropriation."^ No important 
action was taken on either of these propositions. 

Similar prox)ositions do not appear again until the winter of 
1860-61, when Mr. Douglas revived this amendment,^ which 
was later in the session advocated by Mr. Clemens of Virginia.* 
By the terms 'of this amendment the United States should be 
empowered to acquire districts of country in Africa and South 
America for the colonization, at the expense of the Federal 
Treasury, of such free negroes and mulattoes as the several 
States may wish to have removed from their limits, and from 
the District of Columbia and other places under the jurisdic- 
tion of Congress. 

In 1862 President Lincoln in his annual message recom- 
mended to Congress the passage of three amendments in regard 
to slavery. One of these was to enable Congress to appropriate 
money and otherwise provide for colonizing free colored per- 
sons, with their own consent, at any place or places without 
the United States.'^ 

Mr. Saulsbury also included in the articles submitted by him 
as a substitute for the thirteenth amendment a section which 



1 The resolation also covered internal improvements. See post, par. 156. 

» See Webster's speech of March 7, 1850. Works, v, p. 364. 

' App., No. 609b. Mr. Bailey, in 1825, had included in his amendment in regard to inter- 
nal improvements provision for empowering Congress to promote also education, coloniza- 
tion, and the liberal and useful arts. App., No. 513; post, par. 171. 

* App., No. 609c. 

•App., No. 844. 

•App., No. 030. See post, par. 120, note 1. 

» App., No. 975. 



208 AMERICAN HISTORICAL ASSOCIATION. 

permitted Congress to assist firee persons of AMcau descent to 
emigrate and colonize in Africa.^ 

As a result of the civil war, all the negroes were made free, 
and a general colonization scheme was thus rendered impos- 
sible. The present relations of the races seem to indica^te that 
the negroes will remain a permanent element in the population 
of the United States. 

11«. THE FOREIGX SLAVE TRADE. 

With the exception of the colonization schemes, the amend- 
ments upon slavery so far discussed were all attempts to settle 
the crisis of 1860-61. The slave trade was almost the only 
slavery question upon which there had been an earlier series 
of amendments. 

By one of these compromises of the Constitution the impor- 
tation of slaves prior to the year 1808 could not be forbidden 
by Congress. The ratifying convention of lihode Island (May 
29, 1790) was the only one of the State conventions proposing 
an amendment in regard to the slave trade.^ This resolution 
declared: ^^As a traffic tending to establish and continue the 
slavery of any part of the human species is disgraceful to the 
cause of liberty and humanity, Congress shall, ai^ soon as may 
be, promote and establish such laws as may effectually prevent 
the importation of slaves of every description." This protest 
denotes a marked change in the public sentiment, for many of 
the inhabitants of Ehode Island had engaged in the slave trade 
and a large number of unemaucipated negroes still lived within 
her borders. 

The api)roach of the year 1808, when the period of the com- 
promise would terminate, was marked by the presentation of 
resolutions from seven States to prohibit the further importa- 
tion of slaves.^ The legislature of North (Carolina appears to 
have been the first to propose this amendment, which it did in 
1804.* The approval of the legislature of Massachusetts fol- 
lowed in 1804-05, and a member from that State immediately 
introduced in Congress an amendment embodying the sense 
of their resolutions. The next year similar resolutions were 
received irom the legislatures of Vermont, Xew Hampshire, 



' App.. No. 1018. 

3 App., No. 120. The State had paased a gradual eiiian<-ipation law in 1784. 

» App., Xoa. 361a, 362b, 368, 368tt, 369, 372, 375, 384. See below. 

* App., No. 361a, MoMaster, Hiat. of V. S., ill. pp. 517-518. I)u Bois, SuppresBion of the 
Slavu Trade, p. 91. It is referred to in a resolution of the legislature of Georgia of uon- 
ooncurrouce. Mu.H»a(.'hui)ctlH Archives, Huiisu Mis., 5927. 



PROPOSED A3iENDMENTS TO THE CONSTITUTION. 209 

Maryland, and Tennessee, and early in 1808 from the legisla- 
ture of Pennsylvania. 

Early in 1807, however, Congress had passed an act forbid- 
ding the importation of foreign slaves after January 1, 1808, 
thus fixitig upon the earliest date possible under the compro- 
mise clause of the Constitution.* The bill passed by very large 
majorities, the vote in the House being 113 to 5, but over some 
of the details there was an acrimonious discussion, in which 
John Randolph took a prominent part.^ Notwithstanding this 
statute and various others, one of which made the slave trade 
piracy, the African slave trade continued to be a flourishing 
business.^ 

In 1860-61 numerous amendments were proposed among the 
compromise measures presented prohibiting the African or for- 
eign slave trade.* That the South was ready to grant this con- 
cession is made evident by the fact that the foreign slave trade 
was prohibited by the constitution of the Confederate States.* 
In the series of amendments oflfered by Senator Saulsbury, in 
1864, as a substitute for the thirteenth amendment, there was 
one prohibiting the African slave trade on pain of death and 
forfeiture of all the rights and property of persons engaged 
therein.® 

117. INTERSTATE SLAVE TRADE AND INTRODUCTION OF FREE NEGROES. 

Although the commerce clause of the Constitution gave Con- 
gress the right to prohibit the interstate slave trade, the States 
jealously asserted the privilege of prohibiting or permitting the 



1 statutes at Large, ii, p. 426. 

* Principal opposition came from Brown of Rhode Island. See Niles' Register, vii^ 49-53. 
Da Bois, pp. 94-108. 

' The messages of the President, the reports of officials, and the debates in Congress all 
reveal the fact that the trade still went on. Numerous bills and resolutions have been 
presented on this subject. The following are the most important statutes passed by Con- 
gress down to the close of the Thirty-sixth Congress, 1860-61 : (1) 1794, March 22, prohib- 
iting outward slave trade. (2) 1798, April 7, prohibiting slave trade to the Mississippi 
territory. (3) 1800, May 10, forbidding American trading in slaves from one foreign 
country to another. (4) 1803, Februarj' 28, forbidding importation of slaves into States 
prohibiting it. (5) 1804, March 26, forbidding trade to Louisiana. (6) 1807, March 2, for- 
bidding slave trade after January 1, 1808. (7) 1818, April 20, act in addition to act of 1807. 
(8) 1819, March 3, statute in addition to net of 1R18. (9) 1820, May 15, statute making slave 
trade piracy. (10) 1823, January 30, continuing act of 1820 making slave trade piracy. 
Between 1828 and 1861, eleven appropriation bills for the suppression of the trade. 1860, 
June 16, amendment to act of 1819. 1862, July 17, act to amend slave-trade act. See Dr. 
W. E. B. Du Bois, The- Suppression of the African Slave Trade to the United States of 
America. Api>endix B in passim. 

« App., llos.786, 848. 857, 869f, 872, 874i, 883, 899, 915, 917, 931, 938, 947,963, 966, 971d, 969, 

'Art. I, sec. 9. Du Bois, Slave Trade, pp. 188-191. 

* App-, '^o. 1010. 



B, Doc, 353, pt 2 W 



210 AMERICAN HISTORICAL ASSOCIATION. 

traffic as they chose. They further claimed the right to prohibit 
the entrance of free negroes. The assertion of this right by 
South Carolina in the passage in 1820 and the subsequent 
enforcement of the "negro seamen act" led Attorney-General 
Wirt to pronounce this act unconstitutional.^ This contro- 
versy doubtless suggested the amendment proposed by the 
legislature of Georgia in 1823, which declared that "no part of 
the Constitution ought to be construed, or shall be construed, 
to authorize the importation or ingress of any person of color 
into any one of the United States contrary to the laws of 
such State." ^ This resolution received the approval of at 
least three other of the slave States, and the disapproval of 
eight States.^ Usually accompanying the amendments for the 
suppression of the foreign slave trade introduced in 1860-61, 
was another providing that Congress shall pass no law pro- 
hibiting or interfering with the interstate slave trade.* 

118. THE QUESTION OF ABOLITION. 

All the attempts to protect slavery by constitutional amend- 
ment came to an end with the breaking out of the civil war, in 
April, 1861. No sooner had the contest actually begun than 
the fugitives from the service of disloyal masters began to 
come within the Union lines. By the authorized action of 
commanding officers, seconded by later statutes, their return 
was forbidden.* Then by the act of July 17, 1862, all fugitives 
the property of persons engaged in rebellion were set free, and 
on June 28, 1864, the fugitive slave acts were totally repealed. 
April 16, 1862, slavery was abolished in the District of Colum- 
bia, and on the 19th of the following June in the Territories. 

All the old questions had therefore been settled by the early 
action of Congress. Meanwhile the advance of public senti- 
ment had urged upon the nation two new slavery problems — 
the abolition of slavery in the seceding States and its aboli- 
tion in the slave States which had remained loyal. To accom- 



> For accoant of complicutions resulting from this act, Koe Von Hoist, lii, 12S-134. 

* App., No. 538. PorbapB suggOHted aUo by the second Missouri compromise. 
'Louisiana, Mississippi, and MiHsonri. App., Nos. 538a, 538b, 538c. Disapproved by 

Vermont, Maine, Connecticut, New Jersey, Delaware, Ohio, Indiana, and Kentucky. 
App., No. 538. 

* App., Nos. 785, 798, 821, 831, 847, 852o, 856, 867, 8G9e, 874b, 894, 917, 926, 946, 959, 971c. The 
amendment agreed upon by tho ]>eace convention on this subject stipulated tb:it Congress 
should not have "power to prevent the interstate slave trade the right of touching at 
ports, but not the right of transit in or through uouKlave States, or sale or traifio against 
the laws thereof." App., No. 917. Ante. par. 112. 

^J^oDougallf Fugitive Slaves, Chap, vi and Appendix C. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 211 

plish the llrst of these two great objects the war power of the 
nation was employed, and to register that result and to extend 
it over the whole country amendments were passed. The with- 
drawal of Southern members made it possible to secure a two- 
thirds majority in both Houses of Congress, and the noiipar- 
ticjpation of the seceding States in the Government made it 
possible to secure the necessary three-fourths majority of the 
States.^ 

119. ABOLITION IN THE SECEDING STATES. 

On the 22d of September, 1862, President Lincoln issued his 
preliminary proclamation, providing that " all persons held as 
slaves on the 1st of January, 18G3, in any State or parts of 
States then in rebellion should be thenceforward and forever 
free.'' He further announced that at the next session of Con- 
gress he should recommend another proffer of national aid to 
any States which should ''voluntarily adopt immediate or 
gradual abolishment of slavery within their respective limits,'' 
and further that all persons who had remained loyal should, 
on the suppression of the rebellion, be " compensated for all 
losses by acts of the United States, including the loss for 
slaves/' 

In fulfillment of this promise, at the opening of the third 
session of the Thirty- seventh Congress, December 1, 1862, the 
President in his annual message recommended several amend- 
ments. One of these provided for the compensation of such 
States as should abolish slavery before January 1, 1900.'* The 
other declared that *' all slaves who shall have enjoyed actnal 
freedom by the chances of war at any time before the end of the 
rebellion shall be forever free; but all owners of such who shall 
not have been disloyal shall be compensated for them," etc. 

In accordance with his proclamation, the Southern States 
having refused to accept the proffered immunity and aid, the 
President, on the 1st of January, 1863, issued the second and 
final proclamation. It declared, '' as a fit and necessary war 
measure," that all the slaves of the rebel States and parts of 
States "are, and henceforward shall be, free." Thenceforward, 
as the Federal forces advanced, the emancipation proclamation 
was applied, and no further proposition was made for an 
amendment applying only to the seceding States. 



1 For discuasion of the situation, see post, par. 186, 
yPoHt, par. 120. 



212 AMERICAN HISTORICAL ASSOCIATION. 

120. COMPENSATED EMANCIPATION. 

To extend the priDciple of the proclamation of emancipation 
to the border States meant the alienation of loyal slaveholders, 
to permit slavery to continue in the North while it was pro- 
hibited in the South was contrary to the whole development of 
the struggle. A middle way was attempted by President 
Lincoln's favorite device of compensated emancipation, which 
had actually been applied in the District of Columbia. In his 
annual message of December 1, 1862, the President recom- 
mended the adoption of two amendments in regard to the 
compensation of slaves.' The first of these provided for the 
compensation by the General Government of such States as 
should abolish slavery before January 1, 1900; the second 
declared that all the slaves who should have enjoyed actual 
freedom by the chances of war at any time before its end 
should be forever free, but all the owners of such who should 
not have been disloyal should be compensated for them at the 
same rate as the State compensation, but no slave should be 
twice accounted for. A bill was presented in Congress proffer- 
ing an indemnity; but the representatives from the border 
States defeated it. Later, after several of the border States 
had abolished slavery by their own act, amendments were in- 
troduced. The first of these was offered by Senator Powell of 
Kentucky, April 5, 1804, as an additional clause to the thir- 
teenth amendment. It stipulated that no slave was to be 
emancipated unless the owner was first paid his full value.' 
Three days later. Senator Saulsbury submitted a resolution 
which provided that whenever any State should free its slaves, 
it might apply for pecuniary assistance, and Congress might 
grant such relief not exceeding $100 for each person liberated.^ 
The last amendment on this subject was presented by Senator 
Davis of Kentucky, June 8, 1806, as an amendment to the 
resolution which later became the fourteenth amendment. 
The fourth section of this article among other things forbade 
the payment of any "claims for the loss or emancipation of 
any slaves." Mr. Davis proposed to insert in the sentence 
which guaranteed the validity of the public debt for the pay- 

> App., No8 973, 974. Blaine, Twenty Years in CongresH, pp. 372-373, 445-448. Compcn- 
Hated eiuaucipation and rolonization had been Hu^igeHted in 1S61, wlien a rettolution Mna 
propo-sod in the Nrw Vork h'^i.shitnn» to call ninm their KopreBentativea and Senators to 
ur^je the jdan. See IChodes ill, pp. 270-271. 

» App., Ko. 993. 

*App., No.1017. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 213 

ment of pensions and bounties, the following: "Including 
bounties promised to the owners of slaves enlisted into the 
military service of the United States by act of Congress of 
February 29, 1864." > 

121. COMPENSATION FOR SLAVES PROHIBITED. 

The implied pledge in Lincoln's message and the express act 
of Congress led, after the war, to fears that compensation might 
be secured later. It was early foreseen that naturally those 
who had lost their slaves by the result of the war, especially 
those whose investments had been largely in that class of prop- 
erty, would, in their peculiar distress, apply for remuneration 
for their losses. If the compensation was made it would, in 
connection with the already vast debt of the war, seriously 
impair the national credit. Accordingly, the statesmen of the 
Republican party deemed it wise, in order to preclude the pos- 
sibility of such an event, to secure a constitutional prohibition. 
The first resolution proposing such an amendment was intro- 
duced by Mr. Williams of Oregon, in the Senate on the 5th of 
January, 1866.* Somewhat later in the year, Mr. Lawrence of 
Ohio presented a similar amendment in the House, which he 
renewed on two different occasions during this Congress.^ 
Four similar amendments were presented in the Senate previ- 
ous to the consideration of the fourteenth amendment.^ May 
10 the House passed a resolution in the form reported by the 
Committee on Reconstruction.® This resolution contained in 
its fourth section a clause forbidding the United States or any 
State paying " any claim for compensation for loss of involun- 
tary service or labor." Seven amendments to this clause were 
proposed in the Senate, including the one previously referred 
to as presented by Senator Davis.^ The resolution submitted 
by Senator Clark of New Hampshire^was substituted for the 
entire section, and the fourth section of the fourteenth amend- 
ment now stands in this form. In 1867, before the ratification 
of the fourteenth amendment had been assured, Mr. Ashley of 
Ohio introduced as one of a series of amendments an identical 
proposition.' 



>App., No. 1187. 

* A pp., No. 1067. Committee on the Judiciary reported it adversely. 
« App., Nob. 1074, 1075, 1076. 

* App., No8. 1 105. 1122, 1129, 1133. 

• App., Nos. 1140; 1134d in Senate. 

• App., Noa. 1146, 1151, 1163, 1175c, 1182, 1186, 1187. Ante, par. 120. 
» App., No. 1182. 

•App., No. 1221. 



214 AMERICAN HISTORICAL ASSOCIATION. 

122. TOTAL ABOLITION URGED. 

Long before the qaestioii of compensation was closed, the 
institution of slavery had ceased to exist in nearly all parts of 
the Union. Public sentiment demanded that freedom shoald 
be conferred not simply by proclamation, or by ordinary legis- 
lation, but guaranteed by the organic law of the land. 

In response to this feeling, Mr. Ashley of Ohio, on the 14th 
of December, 1863, presented to the House a resolution pro- 
viding for the submission to the States of a proposition to 
amend the Constitution "prohibiting slavery or involuntary 
servitude in all of the States and Territories now owned or 
which may be hereafter acquired by the United States.'' The 
phraseology of the amendment differed but slightly from the 
thirteenth amendment as adopted, following the language of 
the ordinance of 1787.^ On the same day Mr. Wilson of Iowa 
also proposed an amendment to the eflPect that "slavery being 
incompatible with free government, is forever prohibited in 
the United States; and involuntary servitude should be per- 
mitted only as a punishment for crime," and that Congress 
should have power to enforce the same by "appropriate legis- 
lation.'" Both propositions were referred to the Committee 
on the Judiciary, but were not brought up for debate until the 
last day of the succeeding May, five months after their intro- 
duction. Four other resolutions of a similar character were 
subsecjuently introduced in the House during the session.' 
One of these was a simple resolution declaring that the Con- 
stitution ought to be so amended as to abolish slavery, and 
was designed to test the spirit of the House. It was passed 
by a vote of 78 to 62. 

In the meantime the subject had been brought up in the 
Senate. January 11, 1864, Mr. Henderson of Missouri intro- 
duced a resolution proposing two amendments to the Consti- 



lApp., Xo. 981. S(« letter of Mr. Ashley of December 22, 1892, in '*OratioDa and 
Specchivs '"'of James M . Ashley, pp. 330-331. and appendix. The only difference was that 
in Anhley's proposition section 1 contained "its jarisdiction'* instead of "their Juris- 
diction," and in section 2, "by laws duly enact^^d*' instead of **by appropriate legisla- 
tion." Blaine, Twenty Years in CongresH, i, pp. 504-505. Mr. Ashley had also introduced 
the bill for the abolition of slavery in the District of Columbia, which was also modeled 
after the language of the ordinance of 1787. 

» App., No. 982. 

3 Mr. Windom of Minnesota, Mr. Arnold of Illinois, Mr. Norton of Illinois, and Mr. 
Stevens of PennHylvania. The last altto made provision for striking out the clause in 
the (Constitution for the return of persona held to service or labor. App., Kos. 1031, 1032, 
1034, 1035. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 215 

tution.^ Tbe first of these provided, in terms similar to those 
of Wilson's resolution, for the abolition of slavery; the second, 
for the reduction of the majorities required for the proposal 
and ratification of amendments. It was referred to the Com- 
mittee on the Judiciary.^ A few days later, Mr. Sumner sub- 
mitted a joint resolution declaring that "all persons are equal 
before the law, so that no person can hold another as a slave.'' 
With some Democratic opposition, it was referred, like tbe pre- 
ceding, to the Committee on the Judiciary. February 1 the 
committee reported adversely on Mr. Sumner's resolution,^ 
and proposed as a substitute for Mr. Henderson's proposition 
the article that subsequently became the thirteenth amend- 
ment.* Naturally, this amendment met with determined and 
violent opposition by those Senators who still believed in 
slavery. All the attempts to amend the article, save those 
urged by Senator Sumner in favor of a different phraseology, 
or to add additional sections,^ were made by the few members 
who came from the slave States. Senator Garrett Davis of 
Kentucky was particularly conspicuous by reason of his long 
and very fiery speeches against the amendment, and the numer- 
ous "singular and factious amendments" which he presented 
from time to time, eight in all.^ Like Sieyes, who in the days 
of the French Revolution was ever ready with a new draft of a 
constitution, so Mr. Davis was ever ready with an amendment. 
On the 3d of March he introduced two amendments as a sub- 
stitute for the committee's proposition.'' One of these pro- 
vided that no negro should be a citizen of the United States or 
eligible to any office under the United States, the other that 
New England should be divided into two States. The division 
proposed was very singular, inasmuch as Maine and Massa- 
chusetts were to form the State of East New England, the rest 
of the States, West New England. Thus the latter State 
would not be formed of contiguous territory, but of two sec- 
tions separated by many miles. Later, he introduced a new 
amendment for the division of New England which showed 
more regard for the geography of that region, but he withdrew 
it before it could come to a vote.^ This was doubtless intro- 
duced to show his antipathy to Massachusetts, for he previ- 
ously remarked that "the most effective single cause of the 

1 App., No8. 983, 984. * App., Nofl. 986, 098. 

« Post. par. 181. • App., Nos. 987, 988, 989, 990, 991, 992, 994. 

» App., No. 1024. » App.,No«. 987. 988. 

« App., No. 985. 'App., No. 989. See Ante, par. 46. 



..«™<-... »«^«'«' "^""'"'- 

_ H,« intermeddling of Massachuaetts 
]K'n<finir ^•'.'•r has been itt ^^ y^je other amendments were 
^tth the institution ^>^«'«^^'^' gubstitutes for, and sometimes 
^iibniitfe*! hv him sometimes as suu»v , ^ ^ 

ji*- 1 *• ^ *^ the committee's resolutions. One of 
as julditional .motions to, tne cuui ^.^.t ^ a. xi. • 

the.^ provided that the slaves should not be entitled to their 
fiwdoui until removed from the slave States by the Govern- 
ment of the nnited States; ' another that Congress should pro- 
vide for the distribution and settlement of all the freedmen 
of African descent in the United States among the several 
States and Territories in proportion to their white population;* 
another still, made provision for the nomination of candidates 
for the Presidency by the States and for the election of 
President by a unanimous vote of Congress. This same amend- 
ment was subsequently introduced by him as an independent 
proposition and is treated elsewhere.^ 

Senator Powell of Kentucky was not far behind his colleague 
in oflFering amendments. Some of his propositions were unob- 
jectionable in themselves, but were evidently prompted by a 
desire to embarrass the abolition amendment. The antislavery 
men desired the thirteenth article to go before the i)eople as 
a distinct proposition and unencumbered, and consequently 
thwarted these attempts to amend. Mr. Powell presented 
four distinct amendments,^ one providing that " no slave should 
be emancipated unless the owner shall be first paid the full 
value thereof;" another on the term and eligibility of the 
President; another limiting the power of the President to 
make removals, and still another to prohibit riders. It was 
reserved for Senator Saulsbury of Delaware, on the day of the 
final vote on the question in the Senate, to present a substi- 
tute amendment containing the unparalleled number of twenty 
sections. These he declared he presented in a spirit of com- 
promise and conciliation. The character of these propositions 
can be seen by an examination of the Appendix.* Suffice it 
to say here that the first article asserted certain rights of the 
people, which Mr. Saulsbury evidently considered had been 
abused in the past. The remainder of the sections were, to a 
large degree, similar to some of the propositions presented in 
the Thirty-sixth Congress in 1860-61. The first section de- 
clared that all the provisions of this article relating to slavery 
should not be altered without the consent of all the States 



1 App., No. 992. * App., Kos. 993, 995, 996, 997. 

» App., No. 994. * App., Nob. 999-1021. 

3 Ante, par. 40. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 217 

maintaining that institution. None of the amendments pre- 
sented by these three Senators received substantial support, 
several failing to receive more than two votes. 

The amendment finally passed the Senate April 8, 1864, in 
the form reported by the committee, by the vote of 36 to 6.* 
The resolution was immediately sent to the Hou?e, but it did 
not come up for consideration until the last day of May. An 
attempt to throw it out on the first reading failed. During 
the consideration of the resolution Mr. Pendleton, of Ohio, 
the leader on the Democratic side, strenuously maintained 
that "three-fourths of the States did not possess the constitu- 
tional power to pass this amendment," nor, indeed, "all the 
States save one," because the institution of slavery "lies within 
the dominion reserved entirely to each State for itself."'* Two 
unsuccessful attempts were made to amend, the one by Mr. 
Wheeler of Wisconsin, providing that the article should not 
apply to Kentucky, Missouri, Delaware, and Maryland until 
ten years after its ratification;^ the other by Mr. Pendleton, 
who proposed that the amendment should be submitted to con- 
ventions of the people in the several States.* On June 15 the 
vote upon the amendment was taken, the vote standing 95 
yeas to 66 nays. So the joint resolution failed, not having 
received a two-thirds majority in its favor.* Mr. Ashley moved 
a reconsideration, and, pending the action upon the motion. 
Congress adjourned. 

123. ABOLITION SECURED BY THE THIRTEENTH AMENDMENT. 

During the interim between the sessions, the Union arms 
had made progress, a movement for freedom had begun in the 
border States,^ and, most important of all, Lincoln had been 
triumphantly reelected, and the Republican party had made 
gains in the election for the next Congress. 

In such a turn of affairs the Thirty-eighth Congress reas- 
sembled for its second session. The President in his message 

1 The six negative votes were cast by Messrs. Davis of Kentucky', Hendricks of Indlaiia, 
McDougall of California, Powell of Kentucky, Kiddle and Saulsbury of Delaware. 

'Inasmach as "the power to amend did not carry with it the power to revolntionize 
and subvert the form and spirit of the Government." Blaine, i, pp. 507, 537. Cong. Globe, 
Thirty-eighth Congress, first session, pp. 2992-2993; also ibid., Thirty-eighth Congrt'ss, 
second session, pp. 221-225. Keplies of Messrs. Ashley, Cox, Garfield, Boutwell, and Rol- 
lins, see ibid., pp. 139, 192, 222, 245, 258, 263. 

»App., Ifo. 1022. 

* A pp., No. 1023. See post, par. 179. 
» App., No. 985. 

• Maryland by her own actitm abolished slavery. See Cong. Globe. Thirty-eighth Con- 
gress, second session, p. 144. 



220 AMERICAN HISTORICAL ASSOCIATION. 

to secure an aniendment to the Constitution relative to the 
equality of the citizens before the law. 

The first of these propositions, introduced in the House by 
Mr. Stevens of Pennsylvania, December 5, 1805, i)rovided that 
*' all national and State laws shall be equally applicable to 
every citizen, and no discrimination shall be made on account 
of race or color." ^ The next day Mr. Bingham of Ohio oiiered 
a resolution to amend the Constitution so as "to empower Con- 
gress to pass all necessary and proper laws to secure to all 
persons in every State of the Union equal protection in their 
rights, life, liberty, and property."^ Both of these resolutions 
were referred to the Committee on the Judiciary. Within a 
few days, two other amendments of similar purport were intro- 
duced.^ Senator Brown of Missouri submitted, February 1, 
1806, a motion, which was passed, directing the Committee on 
Keconstructicm to inquire into theexpediency of amending the 
Constitution so as to declare with greater certainty the power 
of Congress to enforce and determine by approi)riate legisla- 
tion all the guaranties contained in that instrument, esi)ecially 
as to that which assures the citizens of each State the privi- 
leges and immunities of other States.* Mr. Williams suggested 
an amendment empowering Congress to enforce "all obliga- 
tions, prohibitions, or disabilities" imposed by the Constitution 
on the several States.'^ A few days later, the (Committee on 
Reconstruction reported in each branch of Congress a proposed 
amendment declaring that" the Congress shall have power to 
make all laws which shall be necessary and proper to secure 
to the citizens of each State all the privileges and immunities 
of citizens in the several States; and to all persons in the sev- 
eral States equal protection in the rights of life, liberty, and 
property.'"^ 

No important action was taken in either House upon the 
resolution. There seemed to be a common desire to await the 
final report of the committee. March 9, 1800, during the dis- 
cussion in the Senate on the amendment passed by the House 
relative to the apportionment of Representatives, Senator 
Yates of Illinois moved an amendment thereto, declaring that 
"all citizens, without distinction of ra<'.e, color, or previous 
condition of slavery, shall be protected in the full and equal 



> App. A, No. 1049. * App., Nos. 1060, 1061. • App., Xo. 1107. 

« App. A. No. 105«. * App., No. 1105. • App., Nos. 1109, 1110. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 221 

enjoyment and exercise of all their civil and political rights.'' ' 
It secured, however, only seven votes in its favor.* 

The resolution reported to the House April 30, 1866, which 
became the basis of the fourteenth amendment, contained in 
the first section the provision that ^' no State shall make or 
enforce any law which shall abridge the privileges or immuni- 
ties of citizens; nor deprive any person of life, liberty, or prop- 
erty without due process of law; nor deny to any person the 
equal protection of the laws."^ This amendment passed the 
House without change. It soon became evident that the Sen- 
ate would not adopt the amendment in the form in which it 
passed the House. Several attempts were made to amend 
this first section, some of which were successful. Mr. Wade 
offered a substitute for the entire resolution, but in the first 
section he simply proposed to substitute for '^ citizens" the 
words "persons born in the United States or naturalized by 
the laws thereof.''^ 

On May 30 Mr. Howard of Michigan, in behalf of the Sen- 
ate members of the Joint Committee on Keconstruction, pre- 
sented a series of resolutions which had been adopted by the 
liepublican caucus as a substitute for the House amendment. 
The substitute was accepted. The first change thus introduced 
was to prefix these words to the first clause of the amendment: 
'*A11 persons born in the United States and subject to the 
jurisdiction thereof are citizens of the United States and of 
the States wherein they reside."^ This supplied a serious 
omission in the original Constitution, for in that instrument 
there had been no definition of citizenship. 

Mr. Doolittle of Wisconsin moved to insert in this clause the 
words ** including Indians not taxed,"^ but to all but ten Sen- 
ators such a provision seemed superfluous. A few days later, 
Mr. Fessenden of Maine secured the insertion of the words 



' App. No. 1097. 

'Senator Stewart saggcst'ed a similar proposition (App., Nos. 1128, 1143a), while Senator 
Fessenden proposed an amendment prohibiting; a State from making any law which shall 
abridge the privileges, etc. App., No. 1134. 

« App., No. 1135. 

* App., No. 1147. 

* App., No. 1158. A similar amendment was presented by Mr. Doolittle. App., No. 1175. 
The amendment uf Mr. St4)wart, which he intended to prox>080 to II. Kcs. 127, also contained 
a definition of citizenship: ''All persons bom within the limit« or under the jurisdiction 
of the United StateH, and all persons naturalized under its laws, nre and shall bo both 
citizens of the United States and citizens of the several States within which they reside," 
App., No. 1143a. 



222 AMERICAN HISTORICAL ASSOCIATION. 

^^or natnralized" in this sentence.^ Mr. Yates of Illinois 
offered a resolution to add to the amendment the provision 
that '^nothing in the foregoing sections shall abridge or in 
any wise affect the right, franchise, or privilege of any inhabi- 
tants of the United States," but it failed to be acted upon.' 
Mr. Reverdy Johnson of Maryland made an unsuccessful 
attempt to strike out an important guaranty of this article, 
which declared that no State should '^ make or enforce any law 
which shall abridge the privileges or immunities of citizens of 
the United States." ^ 

Mr. Buckalew of Pennsylvania moved to amend by adding 
to the resolution a sixth section making provision that the 
amendment shall be submitted to the legislatures in the States, 
the most popular branch of which shall be chosen next after 
the passage of the amendment.^ Mr. Doolittle proposed that 
the amendment should be submitted to the States as five 
separate articles, to be acted upon separately; but this motion 
secured but eleven votes in its favor^ — the " Administration 
strength." Finally the consolidated amendment passed the 
Senate June 8 in the form in which it now appears in the Con- 
stitution by the vote of 33 yeas to 11 nays. On the 13th the 
House, by a single vote of 120 to 32, concurred in all the changes 
made in the Senate, and the fourteenth article was sent to the 
States for ratification.^ 

127. FURTHER ENFORCEMBNT OF CIVIL RIGHTS. 

The fourteenth amendment was not declared in force until 
July 28, 1868, but during the year 1867 several additional 
amendments in regard to the enforcement of civil rights were 
proposed,^ but pending the action of the State legislatures 
upon the fourteenth amendment no further steps were taken 
by Congress. During the discussion of the fifteenth amend- 
ment, in 1869, several propositions were presented to prevent 
the right of a citizen of the United States to hold office from 
being denied or abridged '^ on account of race, color, or pre- 
vious condition of servitude."® The general subject came up 
again at the time of the Kuklux movement in the South, 
from 1872 to 1875. Congress passed an act in 1875 which was 

iApp.,No.ll83. 
» App., No. 1179. 

* App., No. 1188. 

* App., No. 1154. Po8t» par. 180. 

• App., No. 1184. 

• App., Not. 1135-1140. 

^ App., No8. 11Mb, 1107, 1202, 1200. 1313, 1215, 1216, 1218. 
•▲pp.. Kot. 1380^ 128»a, 12890, 1311. Seepo8t,131. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 223 

intended to afford protection to all in the enjoyment of the 
rights guaranteed by the fourteenth amendment.^ 

When the question was brought before the Supreme Court 
in the Civil Eights Cases the act was held unconstitutional,^ 
and the court further announced that the power of Cougress to 
enforce the fourteenth amendmeut by appropriate legislation, 
does not extend to legislation prescribing the rights of the par- 
ties themselves between each other, but only to the correction 
and prohibition of legislation and action on the part of the 
State. Owing to this decision, six resolutions to amend the 
ConstitutioD, in order to protect the civil rights and secure 
the equality of citizens, were introduced in the first session of 
the Forty-eighth Congress, 1883-84.*^ 

The first of these was presented by Senator Wilson of Iowa, 
December 4, 1883, the second day of the session. It proposed 
to add to the Constitution, as article sixteen, the following: 
*^ Congress shall have power, by appropriate legislation, to 
protect citizens of the United States in the exercise and enjoy- 
ment of their rights, privileges, and immunities, and to assure 
to them the equal protection of the laws.''* Two of the other 
propositions were offered by Southern members, Mr. Mackey 
of South Carolina and Mr. O'Bara of North Carolina. No 
further attempt has since been made to amend the Constitution 
relative to this subject. 

128. DISABILITY OF PARTICIPANTS IN THE REBELLION. 

While Congress and the States were thus cooperating to 
secure civil and legal equality to the former slaves, they 
were also providing for a withdrawal of certain rights from 
those who had participated as leaders in the movement of 
secession. The failure of the trial of Jefferson Davis for trea- 
son^ put an end to any plans of legal punishment, and the 
wide-reaching pardons and amnesties of President Johnson 
seemed to restore the former belligerents to their previous 
privileges; but there was a popular demand that these men 

> statutes of the United States, Forty-third Congress, second session, chapter 114, pp. 
335-337. 
»109U.S.,3. 
■App., Nos. 1575, 1588, 1596, 1599, 1611, 1612. 

* App., No. 1575. An uioendmeiit proposed in 1880, in regard to the election and the free 
public sohoolH, prohibited separation or diatiuction "on account of race, color, or social 
condition." App., No. 1514. See post, par. 172. 

• The investigation of Mr. H. F. Blake, a member in the Seminary of American History, 
^aryard Uoiyersity, 1890-81, on Xrenson Trials, tiirows much light on this aubjeot. 



224 AMERICAN HISTORICAL ASSOCIATION. 

should not be eligible to places of honor and trust under the 
United States Government, at least for some years to come. 

Four amendments relative to this subject were proposed in 
the early mouths of the year 1866, previous to the considera- 
tion of the resolution which became incorporated into the Con- 
stitution as the fourteenth amendment. The first of these, 
presented by Mr. Cullora of Illinois, February 16, provided 
that no officer of the Southern Confederacy should ever be 
eligible to hold any office uuder the United States Govern- 
ment.^ About a month later, the same gentleman introduced 
a somewhat different resolution, which declared that "no per- 
son, except a citizen of the United States who has at all times 
borne true allegiance thereto, shall ever hold office under the 
United States."* Another resolution was presented to the 
House by Mr. McKee of Kentucky, which provided that no 
person should hold the office of President or Vice-President, 
Senator or Eepresentative in Congress, or any office under the 
appointment of the President or Senate who had been or should 
be engaged in any armed conspiracy or rebellion against the 
Government, etc.^ 

In the meantime Senator Poland of Vermont had submitted 
to the Senate an amendment which stipulated that '^ no per- 
son who has been or shall be willingly engaged in rebellion 
against the United States shall exercise the elective franchise 
or hold any office under the authority of the United States or 
of any State."* 

The report of the Committee on Reconstruction,'^ April 30, 
1866, included as section 3 of its proposition preliminary to 
the fourteenth amendment, a clause by which " all persons who 
voluntarily adhered to the late insurrection " were excluded, 
until July 4, 1870, from the right to vote for Representatives 
or for Presidential electors. This third section was the only 
part of the committee's proposition which the House attempted 
to amend. Mr. Garfield moved to strike it out altogether.^' 
Mr. McKee of Kentucky offered a substitute which forever 
excluded secessionists from holding any office under the Gov- 
ernment,^ and Mr. lieaman of Michigan submitted a substi- 
tute, declaring ineligible to any office under the United States 

» App., No. 1111. 

» App.. No. 1125. 

3 App., No. 1112. A similar aniondmont presented by Mr. Baker of Illinois, No. 1124. 

* App., No. 1116. Similar amouduient proHcnted in House. App., No. 1125. 

«H. R.127,App. No. J137. Similar retjolution presented in the Soii*t«. App. No. 11341), 

« App., No. 1141. 

'App., No. 1149. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 225 

Governiuent any person included in any of the classes of per- 
sons enumerated. In this was included the President and 
Vice-President, the heads of departments, and the foreign 
agents of the so-called Confederate States of America; also 
all persons who had held any office, either civil or military, 
under the Government at the time of secession, who had given 
aid and comfort to the late rebellion.' 

When the resolution reached the Senate there were twelve 
attempts to alter the third section. A disposition was shown by 
some Senators to make this section more stringent by increas- 
ing the period of disability, and also by increasing the number 
of offices from which ex-Confederates should be excluded.* 

On the 30th of May Senator Howard of Michigan, in behalf 
of the Senate members of the Joint Committee on Eeconstruc- 
tion, presented a new draft as a substitute for the entire reso- 
lution. It proposed to insert in place of the third section the 
precise provision which now appears in the fourteenth amend- 
ment.^ The section was so much more stringent than that for 
which it was substituted that several unsuccessful attempts 
were made to mitigate the terms of the amendment. They 
were introduced by adherents of the Administration, Hen- 
dricks of Indiana, Johnson of Maryland, Saulsbury of Del- 
aware, Doolittle of Wisconsin, and Davis of Kentucky.* For 
some reason which has never been adequately explained, the 
Democratic Senators preferred the third section of the substi- 
tute, presented by Mr. Howard, to that of the corresponding 
section of the House amendment, although the terms of the 
latter were decidedly more mild. The vote by which the Sen- 
ate proposition was substituted was nearly unanimous, and 
the entire amendment finally passed the Senate by a vote of 
33 yeas to 11 nays.* 

In November, 1867, before the adoption of the fourteenth 
amendment had become assured, Mr. Ashley introduced, in 



> App., No. 1143. 

'Such ameodinents were tnbmitted by Senator Clark of New Hamiwliire and Senator 
Wilson of Maseachnaette. App,, Noe. 1144, 1153. On the other hand, Mr. Johnson of 
Maryland moved to strike out this section altogether (No. 1155), and Mr. Wade of Ohio 
offered a substitate to the resolaUou, in which the provision oxcladtng rebels from the 
suffrage until 1870 was left out (Nos. 1147-1151). 

3 No. 1160. 

* App., Nos. 1165, 1166, 1167, 1168, 1169, 1170, 1185. Mr. Van Winkle of West Virginia 
moved to add to the amendment an article ext4*nding amnesty to all other persons not 
mentioned in section 3, who had been engaged in rebellion, on their taking oath to sup- 
port the Constitution. App., No. 1171. 

» App. , No. 1137. (Mr. Howard's proposition. App., No. 1160.) 

U. Doc. 353, pt 2 15 



226 AMERICAN HISTORICAL ASSOCIATION. 

connection with a series of propositions, an amendment to dis- 
qualify from holding any office under the United States, or under 
any State, any person who was a member of any legislature or 
convention which passed the ordinance of secession and who 
voted therefor.* 

The effect of the amendment thus laboriously framed was 
smaller than had been expected. Little difficulty was found 
in securing from time to time the two- thirds vote in both Houses 
necessary to relieve individuals and classes from their disabil- 
ities. By 1880 there remained but a few score persons excluded 
from the suffrage or from office, and several ex-officers in the 
Confederate army and ex-members of the Confederate govern- 
ment were found in Congress. 

129. RESTRICTIONS ON SUFFRAGE. 

The conditions of suffrage fixed by the Constitution, namely, 
that ^Hhe electors in each State shall have the qualifications 
requisite for electors of the most numerous branch of the State 
legislature,"* had given rise to two difficulties before 1800 — 
naturalization by States, and the qnestion of the suifrage of 
free negroes. The first of the difficulties called out the amend- 
ment introduced by Mr. Marshall of Kentucky, January 18, 
1858.^ It provided that the second section of the first article 
be so amended 'Hhat only natural-born citizens of the United 
States or the citizens naturalized according to an act of Con- 
gress shall be deemed qualified electors under the Constitu- 
tion, to exercise the right to vote for a member of the House 
of Bepresentatives." 

The question of the suffrage of free negroes gave rise to five 
amendments introduced in the days just previous to the civil 
war; these were in each case but one of a series of amend- 
ments, presented by their authors in the hope of preventing 
the impending disruption of the Union.* The first of these 
was submitted by Senator Douglas, December 24, 1860. It was 
in these words: "The elective franchise and the right to hold 
office, whether Federal, Stale, Territorial, or municipal, shall 
not be exercised by persons of the African race, in whole or in 
part." 5 

1 App., No*. 1213d, 1220. 
*Art. I, seo. 2, cl. 1. 

* App., No. 777. Thii wm the only amendment introdnced in the Thirty-fifth OongreM. 

* App., No8. 843, 852h, 869h, 929, 951. 

* App., No. 843. The same provision appeared in the other resolutions introduced hy 
Messrs. Crittenden. Clemens, and Pngh, as above. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 227 
130. EXTENSION OF THE SUFFRAGE TO NEGBOES. 

Soon after the close of the war, the Southern States had 
granted the suffrage to the negroes, but the grant was revo- 
cable, and the disposition to discriminate against the negro was 
so manifest that a series of amendments was proposed com- 
pelling the States to contiuue or to extend to the iiegro the 
suffrage. During the debate on the fourteenth amendment, 
some of the amendments introduced proposed the reduction of 
the representation of a State whenever the right of suf&age 
was denied or abridged, except for participation in rebellion or 
other crimes. The fourteenth amendment only negatively 
aided the negro in securing the light of suffrage by laying the 
penalty of a decreased representation upon any State that 
should deny or abridge his right to vote. As time went on, 
it was deemed expedient to guarantee* to the freedman the 
franchise. 

In the opening days of the thirty-ninth Congress six distinct 
propositions looking to this end were offered. Two of these 
proposed establishing an educational standard of voting for 
Federal officers.^ Mr. Boutwell was the first to suggest an 
amendment to the Constitution, providing that ^^no State shall 
make any distinction in the exercise of the elective franchise 
on account of race or color."* Another proposed to give Con- 
gress the x>ower to prescribe the qualifications of electors of the 
members of the House of Representatives and Presidential 
electors, and " provide for the election and return of such 
officers."^ 

Meanwhile Mr. Henderson of Missouri, who had introduced 
the resolution which led to the thirteenth amendment, was pre- 
paring an amendment, which he submitted January 23, 1866. 
It read: "No State, in prescribing the qualifications requisite 
for electors therein, shall discriminate against any x>erson on 
account of color or race." ^ 

Shortly after this the resolution passed by the House to amend 
the Constitution in regard to the apportionment of Represent- 
atives came before the Senate for consideration.^ Among the 
various attempts to amend this resolution were five in regard 



1 App., Nofl. 1058, 1059. 

* App., No. 1064. Mr. Elliott proposed a similar amendment. App., No. 1088. 

•App., No. 1070. 

« App.. No8. 1090, 1104. 

•App., No. 1079. 



228 AMBRICAN HISTORICAL ASSOCIATION. 

to the safirage.1 Mr. SumDor proposed as a substitute for tbe 
aineudment a declaration that ^' there shall be no oligarcby, 
aristocracy, caste^ or monopoly invested with peculiar privi- 
leges or powers, and there shall be no denial of rightS} civil or 
political, on account of color or race anywhere within tbe 
limits of the United States or the jurisdiction thereof, but all 
l)erson8 therein shall be equal before the law whether in tbe 
court room or at the ballot box.'' This ' esolution was tem^x)' 
rarily withdrawn, but afterwards presented in a modified form, 
and rejected by a vote of 8 to 39.^ 

Mr. Henderson offered his proposition anew as an amend- 
ment to Mr. Sumner's resolution.^ In spite of his warning to 
his Republican associates, that though they might reject this 
amendment now it would be required of them within five years, 
it was lost, by a vote of 10 yeas to 37 nays. 

Senator Howard of Michigan submitted as a substitute au 
amendment enumerating the different classes of persons of 
African descent upon whom the right of franchise should be 
(conferred. Among the classes mentioned were all males over 
twenty-one who were members of the Army and Navy, all who 
were able to read and write the English. French, or Spanish 
language, and all males in possession of property to the value 
of $2.>0.^ This amendment was not acted upon. His previous 
resolution having been rejected, Mr. Sumner now attempted to 
amend the resolution by inserting the clause "The elective 
franchise shall not be denied or abridged in any State on 
account of race or color." It was rejected, 8 to 38.* Mr. YatfS 
of Illinois likewise presented a similar proposition in a more 
elaborate form. It also was rejected by nearly the same vote.*^ 

Three other propositions to amend the Constitution relative 
to the suffrage were introduced before the close of this Con- 
gress. On April 30, 1806, the same day that the Committee 
on Reconstruction in the House reported the resolution which 
became the fourteenth amendment, Mr. Fessenden in thr 
Senate reported from the Joint Committee of fifteen on the 
Condition of the States which formed the so called Confederate 
States, a resolution to amend the Constitution. It provided 
that political x>ow6r should be i>ossessed in all tbe States 

< App., KOB. 1003. lOM, 1096, 1U97, 1UU9. * A pp., No. lOM. 

» App., No. )093. « App., No. 1096. 

* App., No. 1099. • App., No. 1097. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 229 

exactly in proportion as the right of suffrage should be granted, 
without distinction of color or race.' 

Early in 1867 two amendments presenting the following new 
features were introduced : One to prohibit a State from depriv- 
ing any citizen of the United States from voting at any 
Federal or State election 5 ^ the other contained a provision 
prohibiting any State from requiring more than a $250 property 
qualification, or as an educational test more than the ability 
to read the Constitution in English and to write one's name.^ 

In the early part of the Fortieth Congress, Senator Hender- 
son reintroduced his amendment in somewhat different words. 
It read: " No State shall deny or abridge the right of its citi- 
zens to vote and hold office on account of race, color, or previous 
condition,"* The resolution was referred to the Committee on 
the Judiciary and was not reported until nearly two years 
later, January 15, 1869, when it was taken as the basis of the 
fifteenth amendment. In this same year four very similar res- 
olutions were presented.' 

During the second session of the Fortieth Congress, one 
further attempt was made to secure an amendment on this 
subject. Mr. Newcomb of Missouri, March 9, 1868, offered a 
resolution instructing the Committee on the Judiciary of the 
House to report an amendment which should settle the quali- 
fications of electors impartially and uniformly in all the 
States.^ 

181. THE FIFTEENTH AMENDMENTS 

The exi)erieiice of the fonr years following the close of the 
war showed that the right of suffrage was too important and 
essential to be left to ordinary legislation. It should be incor- 
porated into the Constitution. The indorsement of the action 



I App., Ho. 1184. Senator Stewart offeretl an amendment, which he had preyiously intru- 
dnced (App., No. 1128) to the committee's proposition. App., No. 1190. 

*App., No. 1107, jnroyided the citizens were of aoand mind, unconvicted of any infamous 
offense, and had attained the age of 21, and had resided in the State one year. 

*App., No. 1203. The same had been presented before, to be printed. App., No. 1194f. 

«App., No. 1209 (March 7, 1867). 

>App., N08. 1212, 1213, 1216, 1217. Mr. Ashley, who presented two of theao, proposed that 
after July 4, 1876, ability to read and write English should be a requirement for the suf- 
frage. App., No. 1227e, conferring the suffi'age on all citizens of age, was also introduced 
by him. 

«App.,No.l224. 

'Brief history of its proposal and adoption: See Foster, Com. on Const., i, sec. 52, pp. 
325^329; Story, H, Chap. XLViii (by Judge O>oley). The writer has not deemed it neci*s- 
sary to trace the political history of the "reconstruction amendments," as it has already 
been done many times. 



230 AMERICAN HI8T0FICAL ASSOCIATION, 

of the liepublicau party at the polls in 1868, convinced the 
rank and file of the party that another amendment was neces- 
sary. Accordingly, at the opening of the third session of the 
Fortieth Congress, in 1868, eight distinct amendments were 
introduced, the effect of which, if adopted, would have been to 
extend the right of suffrage to the freedmen.^ In a short time 
three more amendments on this same subject were offered.^ 
Of these eleven ameudments, seven were presented in the 
House and four in the Senate. With one exception, they 
were all referred to the Committee on the «7udiciary in their 
respective Houses. 

The Committee on the Judiciary reported to the House on 
the 11th of June, 1869, through their chairman, Mr. Boutwell 
of Massachusetts, a joint resolution proposing an amendment 
which provided that " the right of any citizen of the United 
States to vote shall not be abridged by the United States or 
any State by reason of race, color, or previous condition of 
slavery of any citizen or class of citizens of the United States.''^ 

This resolution gave rise to extended discussion, as Mr. 
Boutwell remarked, ^'This debate has demonstrated two facts, 
one is, there is a very general agreement that it is desirable 
to submit an amendment to the Constitution; and the other is, 
that there is a very great difference of opinion as to the details 
of the amendment.^' The truth of this last statement appears 
throughout the entire discussion preparatory to the passage of 
the fifteenth amendment in both branches of Congress. Some 
eleven amendments were offered in the House to the resolution 
reported by the committee.* 

One offered by Mr. Brooks of New York was very peculiar. 
It provided that the right of any citizen to vote should not be 
abridged "by reason of his or her race, sex, nativity, or age 
when over twelve years of age, color or previous condition of 
slavery.'' * 

Mr. Shellabarger of Ohio, objecting to the amendment pro- 
posed by the committee as not preventing the limitation of 
the suffrage on other grounds such as intelligence and property, 
presented an amendment extending the right of suffrage to all 
male citizens of suitable age and "sound mind," except those 



> App., Km. 1233, 1234, 1236, 12?«, 1237, 1238, 1289, 1245. 

> App., No8. 1249. 1307, 1812. 
■App., No. 1250. 

< App., Noe. 1251-1200. 
•App., No. 1251. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 231 

"who have eiigag:ed or may hereafter engage" in rebellion.^ 
Mr. Ward of New York oflfered an amendment allowing all to 
exercise the right of suffrage, except such as have been con- 
victed of treason or other crimes, on complying with certain 
regulations concerning registration and naturalization.^ Mr. 
Bingham of Ohio introduced an amendment the "same in 
substance" as his colleague's, with " one exception ; " it excepted 
those who might "hereafter engage in rebellion ."^ Mr. Bout- 
well, in response to the desire of several to test the sense of 
the House, proposed to add the words "nor shall educational 
attainments or the possession or ownership of property ever 
be made a test of the right of any citizen to vote."* 

All these amendments were rejected by decisive votes, and 
the resolution as proposed by the committee, with only one 
minor change, was passed by the House by a vote of 160 to 42, 
on January 30, 18G9. Meanwhile a similar discussion was 
taking place in the Senate. The Committee on the Judiciary 
at last, on the ir>th of January, rei>orted a substitute for the 
amendment introduced by Mr. Henderson of Missouri' nearly 
two years before.*^ Within the next few days seven amend- 
ments to the joint resolution were presented. One, offered by 
Mr. Williams of Oregon proposed that "Congress shall have 
power to abolish or modify any restrictions upon the right to 
vote or hold office prescribed by the constitution or laws of 
any State."^ Mr. Pomeroy of Kansas submitt^ an amend 
ment which stipulated that the right to vote and hold office 
should not be "denied or abridged by the United States or 
any State for any reason not ecjually applicable to all citizens."^ 
Mr. Buckalew of Pennsylvania presented as an additional 
article an amendment making provision for the choice of Presi- 
dential electors.^ This proposition was later withdrawn, but 
it was shortly afterwards again presented to Congress. Mr. 
Dixon of Connecticut moved that the resolution be submitted 
to conventions in the States for ratification.^** Mr. Davis of 



) App., No. 1255. Somewhat similar amendmenta to this were Noa. 1197, 1245, 1252a, 
1289a, 1289b, 1311, 1312, limited, however, to male citizens in most instances. 
> App., No. 1256. 
■App., No. 1257. 

* App., No. 1258. l<cu octetl, 45 to 95. 

* Ante par. 180. 
•App., No. 1284. 
'App., No. 1285. 
•App., No. 1289. 
•App., No. 1287. 

"App., No. 1286. Post, par. 179. 



232 AMERICAN HISTORICAL ASSOCIATION. 

Kentucky proposed a new method of ratification by the vote of 
the people in ea<jh State. ' 

January 30, upon reception of the House ameudment, the 
Senate immediately took it into consideration, laying aside its 
own resolution. This was done for the purpose of expediting 
any agreement between the two branches. On the 3d of Feb- 
ruary Mr. Stewart offered the amendment originally reported 
by the Committee on the Judiciary.* It changed the phrase- 
ology of the House amendment, and in addition declared that 
the right of a person to hold office should not be abridged. At 
the same time eight other amendments were offered. 

Some of these provided that the right to vote and hold office 
should not be denied or abridged for any reason not equally ap- 
plicableto all citizens.^ Others gave the State the right to fix the 
" conditions of residence and age and registration laws." * An 
amendment to prevent the Chinese and Indians not taxed from 
voting or holding office was also presented.^ One proposed 
to insert before the word ** citizens" the words " natural born." '' 
Attempts were also made to secure the submission of the 
amendment either to conventions or legislatures hereafter 
elected.'' Between the 4th and the 9th of the mouth some fifteen 
substitute propositions were rejected by decisive votes. Some 
of these made provision for excluding from the right of suf- 
frage those who had or who may hereafter engage in rebellion." 
Others prohibited any discrimination in the exercise of the 
franchise or the right to hold office,^ but the majority of the 
propositions were intended to make the terms of the article less 
stringent. Of this character was the resolution proposed by 
Mr. Bayard of Delaware which restricted the amendment in 
the applicaticm to Federal offices.^® Mr. Davis of Kentucky 
proposed as an additional clause an amendment declaring that 
this provision is not intended to apply to, or in any way atfect, 



' App., No. 1288. Post, par. 182. Two others, App., Xos. 1289a and 1289b, were ordei-eil 
printed. One d(H>lared that the privilege of suffrage is hereby declared to be a right inci- 
dent to citizenship, subject to be forfeited only on conviction of felony. 

« App., No. 1261. 

» Mr. Howard, App., No. 1284. Mr. Pomeroy, App., No. 1289. 

* Mr. Fowler, Ajip., No. 1266. Mr. Sawyer, App., No. 12C7. 
•Mr. Corbett, App., No. 1265. See post, par. 133. 

* Mr. Williams, App., No. 1262. 

'Mr. Buckalew, App., No. 1264. Mr. Dixon, App., No. 1268. Post, pars. 179. 180. 
•Mr. Warner, App., Nos. 1270, 1282. 

*Mr. Wilson, App.,No«. 1274-1275. Two similar resolutions were proposed as indepen* 
dent propositions. App., Nos. 1811, 1312. 
10 App., No. 1279. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 233 

the priuciples aud forms of the goveruments of the several 
States as organized by their respective constitutions.' Mr. 
Samner, believing an amendment unnecessary, as the same 
result could be secured by legislation '^ and because of the 
reflection the adoption of such an amendment would cast upon 
the Constitution," opposed the amendment and offered a sub- 
stitute in the form of a bill expressive of his views, but it 
received only nine votes.^ The remaining amendments were 
to a large extent modifications of, or additions to, the article. 
Some fifteen of these substitute propositions were rejected 
by decisive votes.^ Finally, Mr. Wilson of Massachusetts 
offered a more '^ comprehensive" amendment, which proposed 
to add to the si>eciflcations of race and color those of '^ nativity, 
property, education, and creed." * This proposition gave rise 
to considerable discussion by those who seriously objected to 
the prohibition of an educational test, and the amendment 
failed to secure a majority, the vote standing 19 to 24. Sub- 
sequently the substitute suggested by Mr. Wilson was agreed 
to by a vote of 31 to 27. It read : " No discrimination shall 
be made in any State among the citizens of the United States 
in the exercise of the elective franchise or in the right to hold 
office in any State on account of race, color, nativity, property, 
education, or religious creed." ^ 

Even after the amendment was ordered to be engrossed, Mr. 
Morton of Indiana was allowed to introduce, for the Com- 
mittee on Representative Eeform, the amendment which Mr. 
Bnckalew of Pennsylvania had previously proposed, as an 
additional article. The aim of the amendment was to secure 
the choice of the election by a popular vote in every State. 



»App.,1272. 

* Senate Journal^ Fortieth CongreRS, third seHsion, pp. 229, 280. 
SApp.,N06. 1262-1282. 

« App., No. 127f. 

* App., No. 1275. This " would have altered the constitutions of more than one-half of 
the states." Foster, Com. on Connt., i, p. 32.5. At that time the following States required 
an edacatlonal test for voters: Connecticut, by the coiistitntion of 1858; Massachnsetts, 
by an amendment of 1857. Florida, by constitution of 1868, provided for educational quali- 
fications for new electors after 1880. Since that date the constitution of Colorado of 1876 
authorised the legislature to provide by law such a qualification for new electors after 
1800. The recent constitutions of MisBissippi (1801) aud of South Carolina (1896) mako 
provision for an educational test of such a nature that the migority of the negroes can 
be easily deprived of the franchise. On the other hand, the constitution of Alabama of 
1875 prohibits any educational or proiterty qualification for the snfiY^ge or office. Bhodc 
Island and Pennsylvania in 1869 both required an elector to own property, and several 
other States required the payment of a poll tax. Hitchcock, Am. State ConstltntionH. 
pp. 27-32. 



234 AMERICAN HISTORICAL ASSOCIATION. 

To insure this result Oongress was empowered to prescribe the 
manner in which the election should be conducted.^ After a 
short discussion the addition was a<3cepted by a vote of 37 to 
19, and the two pro])osed amendments, included under one 
resolution, were adopted by the Senate, the vote standing 40 
yeas to 16 nays. In form, therefore, the Senate had agreed to 
the Honse proposition with amendments. When the resolu- 
tion thus altered was received in the House that body unwill- 
ing to accept such a radical and sweeping amendment, refused, 
by the decisive vote of 37 to 133, to concur and asked for a con- 
ference.^ To this customary request the Senate declined to 
accede. An attempt to secure an abandonment of the Senate 
additions received 30 votes to 24, but only 31 votes against 27 
could be summoned in favor of the original House proposition 
thus restored. The measure, therefore, failed for lack of a 
two-thirds vote in the Senate. 

The Senate immediately (February 17) resumed the consid- 
eration of its own resolution which had been set aside by the 
House proposition. A very spirited discussion ensued, during 
which eleven amendments were proposed and rejected.' Of 
these the proposition of Mr. Howard of Michigan, that "citi- 
zens of the United States of African descent shall have the 
same right to vote and to hold office in States and Territories 
as other citizens,'' came the nearest to being accepted.^ Mr. 
Dixon again proposed that the amendment should be pre- 
sented to conventions in the States,^ and Mr. Davis that it 
should be submitted to the legislatures hereafter to be chosen,^ 
and Mr. Hendri(iks that it should be submitted to the legisla- 
tures of the several States the most numerous branches of 
which should be chosen next after the passage of the resolution.^ 
After various unsuccessful attempts to prevent the amend- 
ment coming to a vote, the resolution was passed that same 
day, 35 yeas to 1 1 nays. It was substantially in the form finally 
accepted, save that the words " to hold office ^ were added after 
'^the right to vote.''^ February 20 it came up for consider- 



 App.. KoB. 1281, 1308. See ant«, iiftr. 53. 
« App., No. 1250. 

* App., Km. 1291-1301. 
« App., Xo. 1290. 

* App. , No. 1299. Ante, par. 179. 

* App., No. 1297. Ante, par. 180. 
' App., No. 1296. 

* It will thns be Been that the Senate had given np its inaistance npon an amendment 
which pn>hihit«4l diacrimination by the States by means of religloiia, edaoational, or pro)), 
erty qualification. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 235 

atiou in tbe House. Five attempts were made to amend,^ one 
of which was successftil; namely^ that offered by Mr. Bingham 
of Ohio, adding the words which the Senate had originally 
proposed, "nativity, property, creed," to the other specifica- 
tions. Thas amended, the Hoase passed the resolution by a 
vote of 140 to 37.* 

The Senate in its turn rejected the House amendment, 
although it was substantially like that it had first adopted, 
and asked for a committee of conference. The House insisted 
on its amendment, but agreed to appoint a committee of con- 
ference. " The rule, indeed, seemed to be for each branch to 
desert its own proi>osition as soon as there was a prospect that 
the other branch would agree to it.''^ 

The controversy was finally adjusted by the committees 
which reported the fifteenth amendment in tbe precise form 
in which it was finally incorporated in the Constitution.* Both 
Houses accepted the resolution thus amended, the House by a 
vote of 145 yeas to 44 nays, the Senate 39 yeas to 13 nays. 
Thus the fifteenth amendment was recommended to the States, 
by Oongress, on the 26th of February, 1869 — six days before 
tbe expiration of the Fortieth Congress and the inauguration 
of General Grant as President.* 

On the 30th of March, 1870, the Secretary of State issued a 
proclamation declaring that the amendment had been ratified 
by the legislatures of twenty-nine of the States, which consti- 
tuted the necessary three-fourths, and thus it was incor- 
porated in the Constitution. 

182. MISCELLANEOUS PROPOSITIONS ON THE SUFFRAGE SINCE THE 

FIFTEENTH AMENDMENT. 

A few amendments have been presented since the passage 
of the fifteenth amendment, prox)Osing additional regulations 
in regard to the suffrage. 

The first of these was presented by Senator Pomeroy of 
Kansas twice during the year 1870. It declared that "the 
basis of suffrage in the United States shall be that of citizen- 
ship," "but each State shall determine by law the age of the 
citizen and the time of residence required for the exercise of the 
right of suffrage, which shall apply equally to all citizens; and 

I App., Nob. 1802-1306. 
*App.,No. 1305. 

* Blaine*8 Twenty Yean of Congress, VoL n, p. 417. 

^Conference committee struck out the words "to hold office." Reason for tho i>ecnliar 
langua^re nscd, seo Foster, Com. on the Const. I, p. 328. 
*App.,No.l284. 



236 AMERICAN HISTORICAL ASSOCIATION. 

shall also make all laws concerning the time, place, and man- 
ner of holding elections for all St^te and municipal officers/'^ 
In 1875 President Grant in his annual message recommended 
that education should be made compulsory << so far as to de- 
prive all persons who can not read and write from becoming 
voters after the year 1890, disfranchising none, however, on 
grounds of illiteracy who may be voters at the time this amend- 
ment takes effect."^ In his last annual message President 
Grant renewed his recommendation of the previous year.^ It 
has already been noticed that in 1860, when the early attempts 
were being made to give the suffrage to the negro, Mr. 
Howard had proposed an amendment to enfranchise all 
negroes who could read either English, French, or Spanish.^ 
In the following year an amendment was introduced providing 
that after July 4, 1876, ability to read and write the English 
language should be a necessary qualification for the franchise.^ 
When the fifteenth amendment was under consideration, sev- 
eral attempts were made to include in its provisions a clause 
regulating or forbidding the requirement by any State of an 
educational or property qualification for the suffrage.^ 

One amendment has been proposed since to require an edu- 
cational test for the franchise for all citizens of the Unite<l 
States born after the adoption of the amendments 

Congressman Bunker of Missouri proposed, in 1877, an 
amendment to restrict the application of the fifteenth amend- 
ment " to persons wlio were citizens of the United States on 
the 30th of March, 1870, when the amendment was adopted, 
and their issue." " Three other resolutions proposed that the 
Constitution should be amended so that the right to vote 
should not be abridged on account of nativity. The first of 
these was presented by Senator Butler of South Carolina, in 
1883;^ the other two were championed by Mr. Collins of Mas- 
sachusetts, in subsequent years. '^ 

1 App., Ko8. 1325, 1330. 
s App., No. 1897. 

* App., No. 1430. 

* App., No. lOM. 
•App., No. 1217. 

« App., Nos. 1069, 1194f, 1203, 1258. 

' App., No. 1514. It required eacli Stat^ to anpport a Ryntem of free pnblic mhools. See 
post, par. 172. 

• App., No. 1445. 

• App., No. 1678. 

'0 App., No8. 1603, 1650. In the Fifty-tliird Congress, third session, two amendments 
-were )>roposed to prohibit the StatAs from granting the right of the franchise to aliens. 
H. Res., 278, 280; Heoord, pp. 2425, 2477. At pn^sent in seventeen States an alien who baa 
declared bis intention to become a citizen of the United States can rote. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 237 
183. SUFFRAGE OF THE CHINESE. 

When the saft'rage amendineut passed by the Hoase was 
under discussion by the Senate, February 3, 1869, Mr. Oorbett 
of Oregon submitted the following addition : " But Chinamen 
not born in the United States and Indians not taxed should 
not be deemed or made citizens.'* ' The amendment was, how- 
ever, rejected by the Senate on the 9th of the month. 

Within a month after the submission to the States of the 
suffrage amendments, Mr. Johnson, of California, moved in 
the House that the rules be suspended to enable him to sub- 
mit the following resolution :^ '' Resolved, That in passing the 
resolution for the fifteenth amendment to the Constitution of 
the United States the House never intended that Chinese 
or Mongolians should become voters." The House, however, 
refused to suspend the rules by a vote of 42 yeas to 106 nays. 

134. WOMAN'S SUFFRAGE. 

The first attempts to amend the Constitution so that the 
right of suf&age should be extended to women were made 
when the reconstruction amendments were before Congress. 
UjK)!! the 23d of January, 1866, Mr. Brooks of New York, 
after presenting a petition from several thousand woman suf- 
fragists, gave notice of his intention to introduce an amend- 
ment to the resolution then pending,^ by inserting the word 
" sex " after the word " color," so that this portion of the 
amendment should read: "That whenever the elective fran- 
chise shall be denied or abridged in any State on account of 
race or color or sex, all persons therein of such race or color 
or sex shall be excluded from the basis of representation.''* 
In each of the following years, until the early seventies, 
one or more amendments were proposed, the terms of which 
involved the extension of the franchise to women.* Two of 
these deserve further notice. Mr. Brooks again, in 1869, cham- 
pioned the cause of woman's sufiPrage, by offering as a substi- 
tute for the snfifrage amendment a very singular proposition 
in these words : " The right of any person of the United States 
to vote shall not be denied or abridged by the United States 
or any State by reason of his or her race, sex, nativity, or age 



> App.,Ko.l2eS. 

" A pp., No. i:{22. The oonstltutton of California of 1879 expressly withholds the right 
of Hiifl'rage from natives of China. Art. xix of the Constitation makes other disorimi- 
natioua agaiuMt tiieni. 

' Ameudnient in regard t<» the apportion men t of Ilepresentatlves. 

* App., No. 1085. 

« App., Nos. 1197, 1239, 1245, 1251, 1269, 1289, 1319, 1327, 1348. 



238 AMERICAN HISTORICAL ASSOCIATION. 

when over twelve years, color or previous conditioii of slavery 
of any citizen or class of citizens of the United States." ' This 
resolution was not brought to a vote. 

During the consideration of the sufi&age amendments in the 
Senate, Senator Pomeroy of Kansas made an ineffectual 
attempt to substitute for the House amendment and the Sen- 
ate amendment,^ respectively, an article of such liberal terms 
that the eniranchisement of women must follow its adoption. 
It was as follows: "The right of citizens of the United States 
to vote and hold ofQce shall not be denied or abridged by the 
United States or any State for any reason not equally appli- 
cable to all citizens." ^ The animus of the proposition is seen 
in a remark made by Mr. Pomeroy: " I have studied this form 
of government to no purpose if its logic does not lead me to 
universal and impartial suffrage." 

The first of another series of amendments on the same sub- 
ject made its appearance in 1878; twelve resolutions to extend 
the right of sufirage to women have since been introduced into 
Congress, six in the Senate and six in the House.^ The first of 
these was presented by Senator Sargent of California, in 1878. 
Senators Lapham of New York and Blair of New Hampshire, 
and Congressman Reed of Maine, have each presented a 
woman's suffrage amendment twice. Usually these resolu- 
tions have been reported back by the committee to which they 
have been referred with extended reports both from the major- 
ity and minorty. Since 1882 these resolutions in the Senate 
have been referred to the Select Committee on Woman's Suf- 
rage.* The amendment submitted by Senator Blair in the first 
session of the Forty-ninth Congress, was finally brought to a 
vote in the second session and rejected, 16 yeas to 34 nays.^ 
The last amendment on this subject was presented in 1888 by 
Mr. Mason of Illinois, "by re(iuest." It contains the singu- 
lar provision of extending the right of suffrage tx) "widows 
and spinsters," presumably on the ground that there is no 
voter to represent their interests." 



' App., No. 1251. 

' To amend the Honse amendment February 3, 1869 : t-o amend the Senate amendment 
January 29, 1869. 
3 App., Nos. 1269, 1289. 

* App., NoH. 1458, 1504, 1506, 1560, 1561, 1580, 1590, 1636, 1671, 1689, 1700, 1728. 

^ Reported favorably in 1884. Senate Report No. 399, Forty -eighth Congress, first session. 

• App., No. 1636. 

' App., No. 1723. In Wyoming and the recently admitted Stateof Ctah, women have full 
suffrage. In Colorado, in 1898, the people voted in favor of general woman suffrage. Women 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 239 
135. PRESENT CONDITION OF THE SUFFRAGE. 

The principle of leaving to the States the determination of 
the qualifications for the franchise has in general approved 
itself. The only deviation from this principle is in the case of 
the fifteenth amendment, which was the outcome of great politi 
cal causes. 

The fifteenth amendment was framed not because of any 
feeling of dissatisfaction with the working of the old system, 
but to meet the exigencies of the time — the enfranchisement of 
the negro. At present there is no disposition to extend, or 
even to enforce the extension of the fifteenth amendment by 
additional amendments.^ Since the adoption of the last amend- 
ment the number of proposals has been small. The only con- 
siderable movement to secure an additional amendment comes 
from the woman sufiragists. There is no popular demand for 
a further extension of the franchise. 

Although there is some uneasiness on account of the increase 
in the naturalization of foreigners, no amendment to restrict 
the rights of naturalized citizens has been proposed sine 1858. 
Possibly the propositions of recent years forbidding the denial 
or abridgment of the right to vote on account of nativity, were 
called out by the fear that at some future time the States might 
pass laws discriminating against citizens of foreign birth. 

136. PRESENT STATUS OF PERSONAL EIGHTS. 

The freedom of the individual is now completely assured, 
and the thirteenth, fourteenth, and fifteenth amendments stand 
as an unalterable statement of the fact. There has been no 
effort to secure a new amendment on this subject. Slavery 
and the questions arising out of its abolition have given rise 
to more than five hundred of the amendments proposed, bat 
happily the subject has now passed out of politics. 

The possession of the legal rights of suing and being sued, 
and kindred rights, leads to but little trouble, and has called 
out few amendments. Citizenship is still a troublesome ques- 
tion. The complications of national and State citizenship have 



fomMrly Totod In the Territory of Washington, bat do not poesees general Buffngt under 
the state oonstitation. In a limited way, mainly as to taxation or the selection of school 
officers, woman suffrage exists in twenty-four other States and two Territories. For 
woinan*8 snfOrage in New Jersey under the Constitution of 1776, see Foster, Com. on the 
Const., I, p. 320, note 4. 

> There has been, however, a movement to enforce by law the provision of the amendment. 
The latest phase of this movement was the Federal election bill in the Fifty -first Congress. 



240 A.MERICAN HISTORICAL ASSOCIATION. 

not been sufficiently cleared up by the fourteenth amendment, 
nor are the rights of citizens protected by national legislation, 
except from the aggression of the States. Although tlie 
decisions of tbe Supreme Court in regard to the scope of the 
amendments have been a great disappointment to the framers 
of the reconstruction amendments, it is probably better that 
the States should be the repositories of these rights; at any 
rate, it is certain that the temper of the country is such, that 
at pretscnt, the States would not accept any further Constitu- 
tional amendment on this subject. 

A great advance was made in the settlement of the question 
of personal rights by the thirteenth, fourteenth, and fifteenth 
amendments, and the subject is not likely to be reopened by 
amendment either for their extension or restriction. 

137. FINANCIAL POWERS— EARLY OBJECTIONS. 

No influence so strongly contributed to the establishment of 
the Constitution as the financial helplessness of the Confed- 
eration. In endowing the new Government with adequate 
powers of taxation, the new instrument excited the jealousy 
of the States and led to the suggestion of a large number of 
amendments in the State ratifying conventions. 

(1) The first series of demands looked to the publication 
of an annual report of the national finances. The conventions 
of Virginia, North Carolina, and Rhode Island desired that an 
amendment should be added to the Constitution making more 
definite the clause in that instrument, requiring the accounts 
of the public money to be published from time to time, by pro- 
viding that such accounts should be published at least once 
ayear.^ The same proposition was advanced in the Senate 
during the first session of Congress, but that body failed to 
see that there was any more need of a constitutional provision 
in this case than there was in regard to the annual publication 
of the journals of Congress.' The fact that such documents 
have been published throughout the one hundred years at 
regular intervals proves that they were right in both cases. 

(2) The very word " excise '^ was disagreeable to our fore- 
fathers, bringing before them recollectious of the most unpop- 
ular English tax; thereibre it is not surprising to find that 
the New York convention included in its series of proposed 
amendments one declaring that Congress shall not impose any 



App., Kofl. 81, 83, 114. ' App., No. 276. Ante, par. 18. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 241 

excise on any article the growth, production, or manufacture 
of the United States, ardent spirits excepted.* The early 
Congresses, so far irom heeding the suggestion, under Hamil- 
ton's direction, laid an excise; iti 1794 the tax brought about 
the well-known whisky insurrection. 

(3) The New York and Rhode Island conventions desired 
the Constitution to be so amended that no money should be 
borrowed without the consent of two-thirds of the members 
present in each House of Congress.^ The restriction had 
nothing to recommend it, and the proposition does not again 
appear. 

(4) The same conventions likewise proposed an amendment 
prohibiting Congress from ever laying a capitation or poll tax.^ 
No such tax has ever been laid and an amendment would there- 
fore have been superfluous. 

(5) The two States of North Carolina and Ehode Island, 
that delayed their ratification of the Constitution and entrance 
into the Union — conscious of their own sins in the emission of 
paper money* — proposed through their respective conventions 
an amendment expressly stipulating ''that Congress shall not, 
directly or indirectly, either by themselves or through the judi- 
ciary, interfere with any one of the States in the redemption 
of paper money already emitted and now in circulation, or in 
liquidating or discharging the public securities of anyone of the 
States, but each State shall have the exclusive right of making 
such laws and regulations for the above purpose as they think 
proper." '^ A short time after this, it will be remembered, the 
central Government assumed the States' debts in accordance 
with Hamilton's scheme. The general principle of this propo- 
sition has been approved as warranted by the Constitution in 
the decision of the Supreme Court in the Virginia coupon 
cases.^ 

(6) Among the radical changes proposed by Mr. Tucker of 
South Carolina, in the First Congress, was one by which the 
States, instead of being prevented from laying duties on imports 
or exports, except where absolutely necessary for executing its 

' A pp., No. 47. 
' App. , Nos. 53, 1 1 6. 
»App..No«.60, 111. 

« See ante, p. 156, note 2. HcMaater, l. pp. 286-286; 331-341. 
•App., Km. 102, 106. 
r * Virginia Couimd CasoH, 114 U. S., 260. 

H. Doc. 353, pt 2 16 



242 AMERICAN HISTORICAL ASSOCIATION. 

inspection laws, should be allowed to lay sach daties on im- 
ports and exports, or any daty of tonnage as should be uuiforoi 
in their operation on the citizens of all the several States in 
the Union.* The members of the House, mindful of the defects 
of the Articles of the Confederation, were in no mood to consider 
such a proposition. The only later attempt to assert it was in 
the nullification movement of South Carolina, in 1833. 

(7) It is interesting to note, in view of the subsequent dis- 
cussion over "the general welfare clause" of the Constitution, 
that an attempt was made, March 2, 1793, to amend this clause 
so that the entire provision would read : "That Congress shall 
have power to lay and collect taxes, duties, imports, and 
excises, to pay their debts and provide for the common defense 
and general welfare of the United States in the cases herein- 
after particularly enumerated."^ If this change had been made 
it would have prevented the champions of broad construction 
from appealing to the general welfare clause to justify the con- 
stitutionality of their proposed action.^ 

188. TAXATION— REQUISITIONS. 

Except in the group of amendments just discussed,^ and an 
indefinite proposition in 1871,^ the question of taxation has 
given rise to few amendments. One clause, however, was so 
connected with sectional interests that it has several times 
been discussed. It is the provision that no capitation or other 
direct tax shall be laid unless in proportion to the census.^ The 
feeling was general throughout the States that the Federal 
Government should not lay direct taxes if it could be avoide<1. 
The prejudice is seen in the fact that all seven of the State con- 
ventions, that proposed any amendments to the Constitution, 
included in their series a proposition on this subject. The 
convention of five States^ proposed almost identically the same 
amendment, providing that when the income arising from the 
impost and excise are insufficient, the Congiess instead of lay- 
ing direct taxes shall first make requisitions upon the States 
to pay their proportion as determined by the census, which 



> App., No. 204. Of. CoDStitntiou. Art. i, sec. 10, cl. 2. 

*App., No. 316. Cf. Constitution. Art. i, hoc. 8, ol. 1. 

*Hat«on's Veto Powers, par. 9&. 

'Ante, par. 137. 

*Introdnc«!d by Mr. MoNeely of Illinois, in the House, December 11, 1871. App. No. 
1838. 

"Constitation, Art. i, seo. 9, cl. 4. 

' Massachusetts, New Hampshire. South Carolina, New York, and Rhode Island. App., 
Noa.4,lS.17,48,llL 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 243 

shall assess and collect the same as the legislature shall direct. 
In case the State neglect aud refuse to pay its proportion, 
Congress may then lay such State's proportion together with 
interest. Similar propositions were introduced in both the 
House and Senate during the first session of Congress, but 
were rejected by emphatic votes.^ This failure to receive the 
recommendation of Congress is somewhat remarkable in view 
of the unanimity of the State conventions in proposing it. 

The Virginia and North Carolina conventions proposed an 
amendment which would have had the same effect as that pro- 
posed by the other conventions.^ By the terms of this amend- 
ment it was provided that when Congress should lay a direct 
tax or excise they should inform the executive of each State 
of the quota of such State, and if the State should raise its 
quota at the required time the tax or excise laid by Congress 
should not be collected in such State. It is evident that all 
these proposals were designed to preserve the dignity of the 
State, and to restrict as far as possible the entrance of Federal 
officers and machinery within the jurisdiction of the State. 

Another form of restriction was proposed by the Rhode 
Island convention amendment. Congress was not to lay a 
direct tax without the consent of the legislatures of three- 
fourths of the States.^ 

139. DIRECT TAXES. 

Although some question has been raised as to the nature of 
dire<;t taxes, and the Supreme Court has been called upon to 
define them,^ the only amendment on this point was introduced 
in 1793. It provided that every tax should be deemed direct, 
other than taxes on imports, excises, transfers of property, 
and law proceedings.^ This appears to have been an attempt 
to secure a clear definition of the direct tax. 

140. APPORTIONMENT OF DIRECT TAXES. 

The question of the manner of apportioning direct taxes 
has been important chiefly because of its connection with the 
apportionment of Bepresentatives. Nevertheless, out of the 



> App., Nob. 200, 236, 250. 

>App., Nos. 28, 80. 

»App.,No.ll2. 

^Cooley, Congt'al Law, p. 61 and notes; Foster, Com. on Const., 1, pp. 415-423. 

*App., No. 316. This may have been presented in anticipation of the act of Congress 
of 1794 levying a tax npon carriages, which was held by the Supreme Court not to be a 
direct tax within the meaning of the Constitution. Hylton v. U. S., 3 Dallas, 171. Foster, 
pp. 418, 419. 



244 AMERICAN HISTORICAL ASSOCUTION. 

large namber of proposed amendments on the apportionment 
Representatives, bat a comparatively small number applied to 
taxes. 

Eighteen amendments have been introduced teaching this 
provision. The first was presented in 1804 by Senator Picker- 
ing of Massachasetts, and provided that Representatives and 
direct taxes should be apportioned among the sever^il States 
according to the number of their free inhabitants.^ Similar 
amendments were proposed by the Hartford convention and 
presented to Congress in 1815 by members from Connecticut 
and Massachusetts upon the instruction of their legislatures.^ 
The only other propositions to amend this clause previous to 
1860 came from the legislature of Massachusetts, in 1843-1844, 
an d were presented by John Quincy Adam s.^ They call ed forth 
a prolonged and heated discussion over their acceptance.^ In 
1865 Mr. Sloan introduced a resolution to amend the Consti- 
tution so that direct taxes should be apportioned among the 
several States according to the appraised value of taxable 
property therein.' A similar proposition was oiiered by Sena- 
tors Doolittle, Stewart and Mr. Lawrence*^ to supply the defi- 
ciency in the resolution passed by the House on the apportion- 
ment of Representatives.^ The same change was proposed by 
Senator Lane about a month later." Within a few months 
Senators Sherman and Doolittle tried without avail to incor- 
porate into the resolution destined to become the fourteenth 
amt'ndment a similar provision, but it was silent in regard 
to the apportionment of direct taxes.^ The proposition of tbe 
Hartford convention was substantially revived in the amend- 
ments suggested by Messrs. Broomall, Blaine, Fessenden, and 
others in the winter of 1865-66. These provided that direct 
taxes should be apportioned according to the number of the 
inhabitants of each State. ^^ Mr. Coukling proposed that the 



>App., No. 364. Ante, pp. 45, 46. 

*App., Nos. 425, 433, 441. See ante, p. 46. Direct taxes had been levied daring the war 
of 1812. Stat, at Large ui, 22, 164. 

*ApPmNo.734. 

4 See ante, pp. 46-49. 

*App.,No.l041. 

*App., Noe. 1062b, 1092, 1100. 

'H. R.No. 51. See ante, par. 22. 

■App.,No.lll9. 

•App., Nos. 1167, 1174, 1376. 

^'> App., Nos. 1053, 1060, 1077, 1087. Idr. Blaine'n proixmition being in connection with the 
npimrtionmcDlof Representatives, provided that thoHc whoBe ])olitical rights were denied 
or abridged should not bo enumerated. MesMrs. Fesseiideu's and Eliot's propositions* 
would exclude Indians not taxed. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 245 

apiM>rtioiiiueDt should be according to their respective Dnmber 
of citizens of the United States.' Bat none of the propositions 
were favorably considered. 

In recent years, a few farther resolations to alter the Consti- 
tation on this subject have been presented. Between 1876 and 
1883 Mr. Reagan of Texas has six times introduced an amend- 
ment renewing the proposal that direct taxes shall be appor- 
tioned between the several States and Territories and the 
District of Columbia in proportion to the value of the property 
in each. It further provided that each State, Territory, and the 
District of Columbia should have the right to collect its portion 
of the same, if it elect to do so, by its own officers, and from 
subjects of taxation provided by its own laws; upon neglect to 
do so the taxes should be collected as might be provided by the 
laws of the United States.^ This amendment is substantially 
a return to the syst>em proposed at the time of the ratification 
of the Constitution. 

In the early seventies two other resolutions proposing to 
prohibit or greatly restrict the powers of Congress to impose 
duties on imports and excises, provided that the necessary rev- 
enue should be raised by a direct tax, apportioned among the 
several States and Territories in proportion to the value of the 
property in each.' 

The whole question has become entirely academic since the 
General Government appears to have abandoned direct taxes. 
The last tax laid in this manner has been refunded to the States 
which paid it.* 

Ul. TAXATION OF CORPORATIONS BY STATES. 

When, in the Yazoo cases and the Dartmouth College case of 
1819, the Supreme Court held that a charter granted by a State 
was a contract,'^ no one expected the great growth of the wealth 
and power of corporations. In 1884, 188C, and 1888 Mr. Mc- 
Conias of Maryland and one of his colleagues introduced an 
amendment to the Constitution enabling the State to tax cor- 
porations, although exempted from taxation by their charters; 

> App., No. 1073. 

<App., No8. 1407, 1442, 148fi, 1533, 1001, 1661. Mr. Landers of Indiana introdnced an 
amendment making " wealth " the basis of apportionment. App., No. 1419. 

* App., Nos. 1338, 1363. No. 1338 proposed to oxempt flrom taxation the property of agri- 
cultnml societies, school, religions, cemetery, and charitable purposes, as well as property 
of the United States, State and manicipal corporations. See post, pars. 145, 148. 

* By act of the Fifty -iirst Congress. Congress has imposed direct taxes five times. 1708, 
1813, 181 5, 1816, 1861 . See Foster, Com. on Const., I, seo. 09, pp. 418-423. 

* 6 Cranoh, 87 : 4 Wheaton, 518. 



246 AMERICAN HISTORICAL ASSOCIATION. 

and at the same time that clause of the Gonstitation which 
prohibits a State from passing any law impairing the obliga- 
tion of contracts was to be declared inoperative in the cases 
under this new amendment.^ No action was taken ; the amend- 
ments are an indication of the dissatisfaction with the doctrines 
laid down in the cases of Fletcher v. Peck and Dartmouth 
College V, Woodward.* The decisions of the Supreme Court in 
recent years indicate a similar tendency. 

142. EXPORT DUTIES. 

Only one other provision as to taxation has been the object 
of amendment. The prohibition on export duty wasundoubtedly 
intended to prevent undue taxation and the burdening of the 
agricultural States. At two different periods amendments — 
nine in all — have been offered to this clause so as to permit 
Congress to lay taxes on exports. 

The first group were submitted during the war of 1812. Mr. 
Mitchell of New York presented the first amendments propos- 
ing this change in March, 1812.^ In each of the three sessions 
of the Thirteenth Congress (1813-14) Mr. Jackson of Virginia 
introduced a similar proposition.^ In January, 1814, the Com- 
mittee of the Whole reported to the House their agreement to 
the second of these resolutions, but the resolution itself failed 
to come to a vote. The return of peace brought to an end the 
movement in favor of this change. 

Not until the fourth year of the civil war was this amend- 
ment again suggested. In March, 1864, a motion was made by 
Mr. Blaine directing the Committee on the Judiciary to inquire 
into the expediency of proposing such an amendment.^ Within 
tbe next two years a similar amendment was proposed at four 
different times by as many authors.^ Mr. Stevens of Penn- 
sylvania had been one of those who in 1865 had advocated as 
an amendment a tax on exports; in the following year he intro- 
duced in the House a resolution to so amend the Constitution 



> App., Hioa. 1622, 1«23, 1649, 1701. 

'The preamble of these resoliitlous recited the fact that tinder ''the principle of the 
construction approved by the Supreme Conrt no hindrance can be seen to rich corpora* 
tions making contractn with legislatures as they best may for perpetual exemption from 
all the bunlens of supporting the Government/' 

" App., No. 404. 

* App., Nob. 410, 415, 420. This was proposed to enable us to raise money on foreign 
consumption and to place us in a position where we could retaliat-e upon the powers 
of western Europe for the restrictions placed upon our commerce. Klies' Begister, ii, 
p. 42. 

f^ App., No. 1033. 

« App., Nos. 1037, 1043, 1061, 1054. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 247 

as to permit Congress to lay an export duty on cotton J This 
proposition was brought to a vote and rejected, 59 voting in 
favor to 61 against.^ A similar resolution was proposed in 1884.^ 
Both groups of amendments had a temporary cause and were 
dropped when the cause had passed away. The Government 
in both cases was engaged in war and embarrassed in its 
finances. The prohibition is so plainly advantageous to a large 
number of the States that a three-fourths vote to take it away 
can not be expected. 

143. PAYMENT OF THE CONFEDERATE DEBT. 

It was hardly to be supposed that any part of the debt 
incurred in carrying on the war against the United States 
would ever be assumed by the General Government. There 
was, however, some danger that the Southern States might 
assume it. In order to prevent any doubt on the subject, six- 
teen amendments were proi)osed. The first were offered by 
Messrs. Stevens, Bingham, and Farnsworth, December 5 and 
6, 1865, in the House.* The latter was reported favorably by 
the Committee on the Judiciary, and on December 19 passed 
the House by the pronounced vote of 150 yeas to 11 nays. 
In the Senate four amendments on tliis subject were introduced 
previous to tbe presentation of the resolution which became 
the fourteenth amendment. Two of these were advocated by 
Charles Sumner and Henry Wilson.* When the Farnsworth 
amendment was received from the House it was referred to a 
committee, but meanwhile the fourteenth amendment having 
been passed by that body,^ the consideration of this measure 
on the debt was indefinitely postponed. 

When the fourteenth amendment as passed by the House 
came before the Senate, it was found to contain a stipulation 
that neither the United States nor any State should assume or 
pay any debt already incurred or which may hereafter be 
incurred in aid of insurrection or of war against the UnitetT 
States. Six amendments to this clause were proposed in the 
Senate," but that presented by Senator Clark of New Hamp- 



t App.,No.ll89. 
«App.,No.ll91. 

" App., No. 1620. Mr. Robinson of New York, for the encouragement of the homo 
manufacture of our domestic products. 

* App., Nos. 1052, 1056, 1057. 

• App., Nos. 1066, 1105, 1121, 1130. 
•App., No. 1139. 

' App., Nos. 1145, 1150, 1162, 1175c, 1181, 1186. 



248 AMERICAN mSTORICAL ASSOCIATION. 

shire was adopted and incorporated aB section 4 of the amend- 
ments Mr. Davis of Kentucky moved to add the following 
clause to the fourth section : ^< But the obligation of the United 
States to pay for private property taken for public ulse in all 
cases shall remain inviolate." ^ In 1867, before the success of 
the fourteenth amendment was assured, Senator Dixon of 
Connecticut and Congressman Ashley of Ohio alike intro- 
duced an amendment on this subject in connection with the 
scries of propositions offered by them.^ 

The provisions on this subject, as well as those on the pay- 
ment of the national debt, were suggested by the apprehension 
of some that should the South, by some political overturn, 
again obtain control of the National Government, it might 
either impair the credit of the Government by refusing to pay 
its debts and pensions, or even cripple its finances by assom 
ing the Confederate debt. 

144. CLAIMS FOR DAMAGES ARISING OUT OF THE CIVIL WAR. 

Although any attempt to make up the public losses occa- 
sioned by participation in the Confederacy was thus precluded, 
there was serious danger that the Government might be called 
upon to pay for private property destroyed or taken during 
military operations. The special machinery provided by the 
acts of 1855, 1803, and 1872 for the establishment of a court of 
claims seemed inadequate. Hence the introduction, between 
the years 1876-1881, of sixteen amendments relative to the 
payment of claims.^ The first of these presented by Mr. 
Baker of Indiana, Deceiubor 8, 1876, may be taken as typical. 
It prohibitecj the payment of any claims for loss or damage 
growing out of the taking, use, or destruction of property 
during the late war if the owner ever gave any aid, counte- 
nance, or encouragement to the rebellion.^ Some were very 
comprehensive and forbade the payment of all claims for prop- 
erty taken, used, injured, or destroyed by the United States 
(Turing the rebellion .^^ Another, submitted by Mr. Keifer of 
Ohio, made provision for tlie establishment of a court of claims 
with competent jurisdiction to render judgment on cases 



'App.,No.ll81. 
»App.,No. 1186. 
» App., Nos. 1201. 12l3e, 1221. 

* App.. No«. 1432, 1435, 1452. 1456, 1468, 1469, 1471, 1477, 1477ft, 1481, 1484, 1486, 1487, 1491, 
1525. 

* App., Xo. 1432. 

* App., l^os. 1477a, 1525. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 249 

involving claims against the Government.' June 19, 1878, 
ni)on a motion of Mr. Conger of Michigan, the Hoase sus- 
pended the rules and passed by the vote ot 145 to 61 a resolu- 
tion so to amend the Constitution that the payment of claims 
to disloyal x)ersons for property taken, used, injured, or 
destroyed during the war of the rebellion should be prohib- 
ited.^ This amendment the Committee on the Judiciary of 
the Senate reported in an amended form, but although the 
Senate devoted some time to its consideration, it failed to be 
brought to a vote. 

The large number of claims lodged against the Government, 
besides calling forth the amendments referred to in the pre- 
vious paragraph, suggested also the desirableness of fixing 
some limitation in the time for the presentation of claims 
against the United States. Several propositions of this char- 
acter have been presented in the form of amendments to the 
Constitution.^ The first of these was introduced as early as 
1874, by Senator Wright of Iowa, even before any amendment 
in regard to the payment of Southern war claims ha<l been 
suggested. This resolution stipulated that all claims must be 
presented within ten years at least next after they accrue. 
Later amendments reduced the time to six years. The last 
of these resolutions was presented in 1886. In this connec- 
tion it may be suitable to mention two other resolutions; one 
proposed by Mr. Spnnger of Illinois, in 1881, which provided 
that all claims against the United States shall be determined 
by such tribunals as Congress may establish;* the other, pre- 
sented by Mr. Seymour of Connecticut, in 1886, proposed to 
empower Congress to make provision by a general law for 
bringitig suits against the Government,' and forbade all 
special acts. 

145 PAYMENT OF THE NATIONAL DEBT. 

Several of the amendments just treated, prohibiting the pay- 
ment of the Confederate debt, contained also a clause guarantee- 
ing the payment of the national debt. The first of these were 
suggested by Charles Sumner (January 5, 1866) and Senator 
Lane of Kansas (March 13).^ The original resolution, which 
was the basis of the fourteenth amendment, as reported by the 



> App., No. 1471. * App.,No. 1529. 

« App., No. 1477. • App., No. 1676. 

« App., 1888, 1392, 1461, 1468, 1497, 1608, 1654. • App., Nos. 1066, 1120. 



250 AMERICAN HISTORICAL ASSOCIATION. 

House had, however, uo clause guaranteeing the national debt. 
Propositions to insert such a clause were made by Messrs. 
Wade of Ohio, Howard of Michigan, and Clark of New Hamp- 
shire. The last gentleman's amendment was accepted and now 
ap[)ear8 as a part of section 4 of the amendment.^ 

In 1873 Mr. Myers of Pennsylvania presented an amendment 
providing for the payment of the principal and interest of the 
public debt by the imposition of duties on imports, but that 
the annual current expenses of the Government of the United 
States should be assessed upon the several States and Territo- 
ries.^ All questions as to the good faith of the nation have 
long since been set at rest. 

146. DISTRIBUTION OF THE SURPLUS 

An earlier set of amendments had been called out by the 
fact that there was likely to be no debt to pay. The legisla- 
ture of Georgia, in 1833, suggested in their call for a constitu- 
tional convention the advisability of so amending the Gonsti- 
tution that it may prescribe what disposition shall be made 
of the surplus revenue, when such revenue is found to be on 
hand.^ Two years later, when an actual surplus began to accu- 
mulate, Mr. Calhoun made a more delinite proposition. Twice 
during the year 1835 he introduced an amendment for the dis- 
tribution of the surplus revenue among the States until 1843.* 
This date was fixed upon as the limit; for by the compromise 
tariff of 1833 the duties would be reduced to the minimum rate 
of 20 per cent in that year, and this would cause a correspond- 
ing reduction of the revenue. Without waiting for the for- 
mality of a constitutional amendment, the acts of 1836 caused 
the deposit of (27,000,000 with the States, and the bad results 
of that action have prevented the presentation of any similar 
propositions.* 

147. EXPENDITURES-APPROPRIATION BILLS. 

Except in the case of the surplus, no amendments have been 
suggested to change the objects of expenditure. The increas- 

I App., No8. 1138, 1U9. 1181, 1175b, 1180. The two amendments made by Senator Dixon 
and Mr. Ashley, as referred to in the previoas paragraph, also contained the provision 
fniarant4>ciiig the United States debt. App., Nos. 1200, 1213e, 1221. 

* App., No. 1363. It Htipniated that the debt should bo coiiHolidated at a nniform rate of 
interest, or should be extinguished by the payment of $50,000,000 of the principal annually. 
See ante. par. 140. 

*App.,No.621. 

* App., Nos. G43, 647. 

* Bourne's Surplus Revenue. See ante, par. 95. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 251 

ing extravagance of the appropriation bills, and the manner 
in which tbey are urged through in conference, suggested a 
reform. In 1876 Mr. Cook proposed an amendment to limit 
the power of Congress to make appropriations '^ over and above 
the estimates sent to Congress by the executive department."^ 
In the early eighties Mr. Turner of Kentucky presented to 
the consideration of three successive Congresses an amend- 
ment requiring that the yeas and nays should be recorded on 
all appropriations exceeding $10,000.' The provision requir- 
ing the vote of each member to be recorded would tend to cause 
each member to become better informed and weigh the subject 
well before giving his vote.^ Although the principle of the 
amendment is a good one, in practice it would probably be 
made a means of filibustering. 

Other amendments have been introduced either suggesting 
reforms in the method of administering the finances or in the 
manner of making appropriations.'* To prevent the growing 
practice of inserting clauses appropriating money in bills of 
an entirely foreign nature, and of attaching "riders" upon 
general appropriation bills and other measures, it has twice 
been proposed, in recent years, to so amend the Constitution 
as to require that every act shall embrace but one subject- 
matter, and the matter properly connected theremrith, which 
subject shall be embraced in the title.' 

148. PROTECTIVB TARIFFS. 

No one subject except slavery has caused so much debate in 
Congress as the tariff; yet although there have been frequent 
discussions over the constitutionality of a protective tariff, 
especially in the earlier years, only three attempts have been 
made to settle the controversy by means of a constitutional 
amendment. 

The legislature of Georgia, in 1833, in its application to Con- 
gress to call a convention, declared that the experience of the 
past had clearly proved that the Constitution needed amend- 



> App., liTo. 1422a. *' This roBtriction shall not preyeot Congress from diminishing the 
said estimates if they think proper. " 

* App., Nos. 1512, 1540, 1591. 

> A similar provision is foand in many of the oonstitations of the States, and their 
experience seems to hare demonetrate<i the wisdom of the provision. 

* App., Nos. 1062, 1481a, 15«7. The hitter provided that all bills appropriating money 
should specify the exact amount of each appropriation, and the purpose for which it was 
made. 

> App., Koa. 1375b, 1501. Suggested by the contest hetween President Hayes and Con- 
gress. Mason, Veto Power, p. 48; ante, p. 133. 



252 AMERICAN HISTORICAL ASSOCIATION. 

nient ; they asked that the principle involved in a tariff for the 
direct protection of domestic industry might be settled, and 
also <' that a system of Federal taxation may be established 
which shall be equal in its operation upon the whole people 
and in all sections of the country."* The question of protec- 
tion had recently forced itself upon the attention of the country 
through the success of the protectionists in passing the tariff 
of 1828. The States of Georgia, Alabama, South Carolina, 
North Carolina, Mississippi, and Virginia protested against it 
as unjust and unconstitutional ; these protests proving to be of 
no effect, South Carolina had attempted to put in force the 
doctrine of nullification.^ 

It was over thirty years before the next proposition on this 
subject was introduced. In 1864 Senator Saulsbury included 
in the series of amendments proposed by him, as a substitute 
for the thirteenth amendment, one which provided that duties 
on imports might be imposed for revenue, but should not be 
prohibitory or excessive in amount^ The last of these amend- 
ments, presented in 1871, proposed the abolition of duties on 
imports and excises and the substitution of a direct tax 
instead.^ 

149. PROHIBITIOK OF SPECIAL LEGISLATION. 

The great increase in recent years in the amount of special 
and private legislation has led to several attempts to counter- 
act this evil by means of a constitutional provision. Some 
thirteen resolutions of this character have been introduced 
since 1876.^ The first of these was presented in that year by 
Mr. Springer of Illinois, prohibiting Congress passing any 
special law in a long list of enumerated cases, among which 
were included the granting of pensions, land or prize money, 
or relief to any person, or authorizing the payment of any 
claims against the Unite<l States, except to pay the judgments 
of courts or commissions. It also forbade the granting to any 
corporation any special or exclusive privileges, subsidy, immu- 
nity, or franchise,*^ and in all cases where a general law could 



> App., NoH. 615, 616. 

* For protesto Hee post, par. 156, note; also, Journal of Senate of PenniiylvaniA (1829-30), 
pp. 30, 31 : Ibid. (1832-33), pp. 307, 308. CnnninK is »aid to have declared that "he would 
make the people of America reduce their tariif or dmnolve the Union." Bishop, Hist, of 
Mann fact, !i, pp. 333-334. 

'App., ^o. 1019. 

<App., No. 1338. See ante, par. 140. 

« App., Nos. 1415, 1462, 1472, 1478, 1483, 1488, 1528, 1583, 1606, 1642, 1668, 1678, 1608. 

•App., No. 1415. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 253 

be made applicable do special law should be enacted. A similar 
resolution bas been proiK)sed by Mr. Springer at eight dififerent 
times since,' the aim of which was to limit the legislative 
power ^^to enactment of laws general in their application and 
effect to all sections and persons within the jurisdiction of this 
Constitution." 

Mr. Beach of New York, who was also very active in urging 
an amendment which should prevent Congress from x)as8ing 
private bills, in addition has presented two propositions to 
prohibit the giving or loaning of public property or credit in 
aid of private or corporate enterprises.* Two amendments of 
a similar nature had previously been proposed. One of these, 
presented in 1869, forbade Congress passing any '^law grant- 
ing subsidies to corporations or companies to aid in the con- 
struction of railroads, canals, or other public improvements," 
as long as the national debt shall exceed the sum of 
$500,000,000.3 The other, introduced in 1873, prohibited Con- 
gress guaranteeing or paying the indebtedness of any State, 
Territory, District, or any municipal corjioration.* 

The prohibition proposed by these various amendments is 
analogous to the restrictions in many of the recent State con- 
stitutions,^ and is prompted by the unwillingness of the people 
to trust their representatives. It is contrary to the long- 
accepted practice of the United States, and possibly would 
tend to reduce the feeling of Congressional responsibility. 
Perhaps a more effective remedy would be the severe applica- 
tion of the veto to doubtful cases.^ 

150. STATUS OF FINANCIAL LEGISLATION. 

Since the early years there has been little disposition shown 
to restrict, by means of amendments, the power of the General 
Government over the collection of the revenue, except in regard 
to the imposition and collection of direct taxes, and in a slight 
degree the customs. Likewise there has been little effort to 

I App., Nofl. 1472, 1488, 1528, 1583, 1642. 1673, 1693. 

sApp., NoA. 1607, 1663. 

> App., No. 1316. "Except to complete such as are already oommenced in which the 
United States haa a largo interest." Tbo Union Pacific Railroad doubtless suggested this. 

4 App., No. 1375. 

*Bryce, i, pp. 491,552-533; Hitc)ieo4;lc, Am. State Const., pp. 34-44. 

* President Cleveland applied this rt^medy during liis first term to nearly three hnndred 
cases. See MaHoun Veto Power. App. .\, Xoh. 133 to 433; also pp. 90-98, 128-129, 132-138. 
See ante, par. TiS, for diHciiHsioii of the proiwsitiou to give the Preaident power to veto 
iteiuM ill appropriation bills. 



254 AMERICAN HISTORICAL ASSOCIATION. 

place any check upon the power of Congress to make expend- 
itures, save iu recent years there have been some indications 
of a desire to iix limitations to special legislation, and to pre- 
vent extravagant appropriations.^ 

The debt of the United States and of the States are on an 
entirely different basis; the United States debt being guaran- 
teed by the Constitution, while the Staters debts are assumed 
by the laws of the State. At the close of the civil war, the 
various propositions guaranteeing the national debt, prohibit- 
ing the payment of the Confederate debt, and the claims ot 
disloyal persons, resulted in the incorporation of a section in 
the fourteenth amendment embodying the provisions of some 
of these various resolutions. 

In general, Congress has exercised the extensive power con- 
ferred upon it with good results. 

151. COMMERCIAL POWER. 

It will be remembered that the great cause for the failure of 
the Government under the Articles of Confederation was that 
the Congress had no power over the subject of commerce, and 
the attempt to amend the Articles in order to give them control 
over it, even to a limited degree, met with failure.^ Owing to 
the critical condition into which the whole country had been 
brought by the system of permitting each State to make its 
own navigation laws, the framers of the Constitution deemed 
it wise to give to Congress express powers over all commerce 
not confined to the limits of a State. In addition, the subjects 
of the post-office, coinage, weights and measures, patents and 
copyrights were also expressly committed to the General Gov- 
ernment. Out of this large assemblage of powers flowed many 
implied powers. It is not suprising, therefore, that in the 
early years there was serious apprehension that the Federal 
Government might abuse these powers, and that many attempts 
have been made to limit or define the implied powers, and that 
not a few efforts have been made to increase the catalogue of 
express powers. 

152. CHARTERING CORPORATIONS. 

Almost the earliest evidence of jealousy toward the commer- 
cial powers of the Government is the action of the ratifying 

" On the other hand, there has been one attempt, following the financial criHifl of 1873, 
to confer upon Congress full power "to paus necessary laws to protect the financial 
affairs of the people of the United States.'* App., No. 1375e. 

' The last amendment on oommeroe was proposed by the Congress April 12, 1783. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 255 

conventions of five of the States.* Mindful of the evils of the 
great commercial monopolies of the Old World, such as the 
British East India Company and the Dutch East India Com- 
pany, they were desirous that no such monopolies should 
secure recognition from the United States Government, and to 
that end they proposed as an amendment to the Constitution 
an article declaring "that Congress erect no company of mer- 
chants with exclusive advantage of commerce." The attempt 
made in both the House and the Senate to include a similar 
amendment in the series recommended to the States by the 
First Congress failed.^ The last effort to secure such an 
amendment was made in 1793, in the Senate of the Second 
Congress, but the resolution was tabled.^ 

153. NATIONAL BANKS. 

Kot only did Congress decline to tie its hands and take 
away any implied power of chartering corporations, but it pro- 
ceeded in 1791 to create the United States Bank and grant it 
a monopoly of its privileges for twenty years. The act pro- 
voked the first and one of the most searching discussions of 
the powers of Congress, but led to no amendments. During 
the interim of 1811-1815, when the bank was not in existence, 
Mr. Jackson of Virginia thrice introduced, in connection with 
the amendment authorizing the appropriation of money for 
internal improvements, an amendment conferring power upon 
Congress to establish a national bank.* In January, 1814, 
the proposition was reported favorably by the Committee of 
the Whole House,-but upon its consideration in the next ses- 
sion of Congress it was struck out of the series of amend- 
ments. 

Upon the return of peace, a new national bank was estab- 
lished by the party that had formerly been opposed to it. In 
the financial crisis of 1818-19, the State banks becoming jeal- 
ous and the people believing that the bank had done much to 
produce their ills, under the leadership of the Democratic- 
Republican party, a movement was begun in Maryland, which 
Pennsylvania, Ohio, and other States promised to follow, to 
attempt to tax the institution out of the State. The banks 

'Namely: Masaachnsetta, New Hampshire, New York, North Carolina, and Khode 
Island. A pp., Nos. 5, 18, 51, 99, 123. 
*App., Nos. 239, 262. 
«App., No. 316. 
« App., Ncs. 418, 418, 423. 



256 AMERICAN HISTORICAL ASSOCIATION. 

resisted the Marylaud law, and this gave rise to the celebrated 
case of McGuUoch v. The State of Maryland.^ Id this opinion 
the Supreme Goart, through Chief Justice Marshall, declared 
the State tax unconstitutional and asserted the power of Con- 
gress to establish such an institution. In the meantime, in 
deference to the ])opular clamor, the Fifteenth Congress 
ordered an investigation of the bank, in which certain abuses, 
misappropriation of fnnds, and defalcation in certain of the 
branches, especially those located in Philadelphia and Balti- 
more, were discovered. Upon the disclosure of the report, 
the legislature of Pennsylvania, within which State the cen- 
tral office of the bank was located, early in January, 1820, 
presented to Congress a resolution to amend the Constitution 
so as to prevent the establishment by Congress of any bank 
except within the District of Columbia, the branches of which 
were to be confined to the District.^ Within a short time the 
legislatures of Tennessee, Ohio, Indiana, and Illinois passed 
resolutions concurring in the resolution proposed by the legis- 
lature of Pennsylvania.^ No action, however, was taken by 
Congress beyond reforming the bank. 

The legislatures of at least eight States passed resolutions 
of nonconcurrence.* The reply of the legislature of South 
Carolina is of especlnl interest, in view of the decidedly dif- 
ferent position taken by the legislature of that State on a simi- 
lar question within seven years. This resolution, passed in 
December of 1821, declared that they were *^of the opinion 
that as Congress is constitutionally vested with the right 
to incorporate a bank, it would be unwise and impolitic to 
restrict its operations within such narrow limits as the Dis- 
trict of Columbia. They apprehend no danger from the exer- 
cise of the power which the people of the United States have 
confided to Congress; bnt believe that in the exercise of these 



U Wheaton, 316. 

* A.pp., Xos. 492, 495. Paused by the legislature March 29, 1819 ; vote of House, 81 to 4. 

s App., No8. 492a, 494, 406, 506a. 

4 The legislatures of New Hampshire, Vermont, Massachusetts, Connecticut, New York, 
New Jersey, South Carolina, and Georgia. Journal of the House of Kepresentatives of 
Pennsylvania (1819-20), pp. 538-539; ibid. (1820-21), pp. 65-67, 462; ibid. (1822-28), pp. 75-76, 
420-421, 646-647 ; ibid. (1823-24), pp. 25-26. Resolves of Massachusetts, Vol. XVI, pp. 118-120. 
Massachusetts Archives, Nos. 6886, 8859. The resolution of the legislature of Georgi«i dc. 
clared that it was " not exi)edient to deny absolutely " the power of Congress to establish 
a bank, "although impressed with the belief that the original grant of surh power should 
be acoomi^anipd with a restrirtiun requiring the assent of each and every Htateto the loca- 
tion of th« Haid bank or any liranch thereof within the limits of such State." Journal of 
the House of Representatives of Pennsylvania (1822-23), pp. 640-647. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 257 

powers that body will render them subservient to the great 
purpose of our national compact."^ 

President Jackson, soon after entering upon his Administra- 
tion, attacked the bank, and in 1832 vetoed a bill to recharter 
it, on the ground that the bill was <^ unconstitutional because 
he disapproved of it."* The next proposition to detennine 
the question of its constitutionality by an amendment arose 
out of this controversy. The legislature of Georgia, in its 
proposition for a constitutional convention in 1833, indicated 
as a subject for discussion, <^The power of chartering a bank 
and of granting incorporation,'' that it may be <' expressly 
given to or withheld from Congress."^ The bank debates of 
1841 and 1862 leil to no amendments; few questions of consti< 
tutional law seem so well settled as the right to create national 
banks. 

In the early seventies an amendment was twice proposed 
prohibiting Congress from hereafter chartering private corpo- 
rations to carry on business within the States.^ The same 
resolution suggested that the Constitution should be so 
amended as to prohibit Congress as well as the States from 
passing any law impairing the obligation of contracts.^ 

154. ISSUING OF BANK NOTES. 

After the expiration of the charter of the second United 
States Bank, in 1836, the controversy was renewed in a new 
form. On one of the last days of 1836 a resolution, the text 
of which unfortunately is not given, was introduced to amend 
the Constitution by inserting provisions restricting the incor- 
poration of banks by States, and limiting them when incorpo- 
rated to the issue of bank notes.^ 

The panic of 1837, which was caused by the inflation of 
the currency due to the issuing of notes by the State banks, 
led to the presentation of additional amendments prohibiting 
any State from incorporating banks for the issue of paper 
notes. The first of these was reported by a select committee 



I Journal of the House of Kepreaentatives of Pennsylvania (1822-28). pp. 75-76. 
« Mason^n Veto Power. App. A, No. 14 ; also pp. 75-76. 

>App.. No. 619. See reply of Massaohusetto legislature. Resolves of Massaohuaetts, 
Vol. XIX, p. 418. 
« App., Nos. 1833, 1350. 
• Bryce, i, p. 315. 
«App., No. 665. 

.H. Doc. 363, pt 2 17 



258 AMERICAN HISTORICAL ASSOCIATION. 

in March, 1837, but no further action was taken.^ The next 
y^ar Mr. Oarland of Louisiana presented an amendment 
prohibiting State incorporated banks from issuing and cir- 
culating notes of the same or of a lower denomination than 
the highest denomination of the coins of the United States.'^ 
Mr. Buchanan of Pennsylvania, in 1840, at that time a mem- 
ber of the Senate, proposed a resolution that a select com- 
mittee be appointed to inquire into the expediency of an 
amendment to prohibit the circulation of bank paper under 
the authority of the several States.^ The resolution was con- 
sidered and the committee was appointed, but there is no 
further record of their action. These amendments were simply 
an incident connected with the crisis of 1837.^ Owing to the 
favor in which State banks were held, especially in the West 
and South, it would have been impossible to have secured an 
amendment, even if Congress had recommended one. 

155. LEGAL-TENDER NOTES. 

When the bank question arose again, in 1862, the amend- 
ments proposed bore rather on an associated subject — the issue 
of legal-tender notes by the Government during the civil war. 
As early as 1866, Mr. Thomas had introduced a resolution into 
the House instructing the Committee on the Judiciary to 
inquira into the expediency of proposing an amendment to the 
Constitution restricting the iK)wer of Congress to issue a paper 
circulating medium.^ The resolution was agreed to, but noth- 
ing further was heard of amending the Constitution in this 
respect until 1870. The previous year, in the first legal-tender 
case, the Supreme Court had held that the notes were not 
legal tender for debts contracted previous to the passage of 
the act.^ Doubtless in consequence of this decision an amend- 
ment was proposed by Mr. IngersoU of Illinois, February 14, 
1870, empowering Congress to issue United States notes and 
make them legal tender in payment of debts.^ Soon after this 
the Supreme Court in the second of the legal-tender cases 
reversed its decision," and accordingly it is not surprising to 



> App., No. 671. 
*App., No. 886. 
» App., No. 701. 

* They may possibly have been saggested by the docision of the Supremo (^ourt iu the 
case of Briscoe v. Bank of Kentucky, 11 Peters, 257 (1837). 

» App., No. 1127. 

* Hepburn v. Griswold, 8 Wallace, 603. 

* App., No. 1326. See also Xos. 1333, 1350. Ante, par. 153. 
 Knox V. Lee, 12 Wallaoe, 457. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 259 

find an amendment introduced in 1873 forbidding Congress to 
make anything but gold and silver legal tender in payment of 
debts.' The year 1874 was marked by the passage of the 
*• inflation bill," which was vetoed by President Grant,* and an 
amendment similar to the one introduced the previous year 
was shortly afterward presented.^ 

It is of interest to note that incidental to the short career of 
the Greenback party, which was opposed to the resumption 
of specie payments, an amendment was presented by Judge 
Ewing of Ohio, and Mr. Oliver of Iowa, in 1878, providing for 
the issue of legal-tender notes and regulating the amounts 
thereof.* 

March 3, 1884, the Supreme Gourt in the third legal-tender 
case, that of JuUiard v, Greenman, decided that Congress may 
make Government notes legal tender in time of peace as well 
as war.^ Just one week later four resolutions proposing 
amendments to the Constitution, relative to the issue of legal- 
tender notes, were presented. That these were directly sug- 
gested by the recent decision of the Supreme Court is shown 
by the text of the amendment proposed by Mr. Potter of New 
York.** This provided that Congress should not have power to 
make anything but ^^gold or silver coin a tender in payment 
of debts, except after a declaration of war, when the public 
safety may require it.'' 

Amendments similar to this, save as to the last clause, were 
presented by Mr. Hewitt of New York " and Senator Bayard 
of Delaware.^ The remaining amendment proposed by Sena- 
tor Garland, while not going so far as these, proposed to limit 
the public debt of the United States by stipulating that the 
issue of legal-tend«r notes should never exceed the sum of 
$350,000,000, unless the bills providing for such increase 
should receive the concurrence of two-thirds of each House of 
Congress, the vote being recorded by yeas and nays in the 
journals."^ 

^ App., No. 1378. Although another »meiidm«Dt waa proposed at the same time to 
empower Congress to pass necessary laws to protect the financial "affairs of the people of 
the Fnited Stat«s." No. 1375 (e). 

' Mason's Veto Power, App. A, No. 92 ; also pp. 80-81. 

 App., No. 1387. 

4 A pp., Nos. 1463, 1406. They also prohibitod the United States or any State from author- 
izing the issue of any other kind of notes, by any person, assoolation, or corporation. 

M 10 U.S., 421. 

•App., No. 1626. 

' App., No. 1627. 

* App, No. 1628. 

• App,, Na 1628. 



260 AMERICAN HISTORICAL ASSOCIATION. 

156. INTERNAL IMPROVEMENTS. 

A much more hotly contested nse of implied powere, espe- 
cially those growing out of the commerce clause, has been the 
exi)enditure of public money for internal improvements. Such 
a practice seems not to have been contemplated by the Feder- 
alists up to 1801. The act authorizing the building of the 
Cumberland road, passed March 29, 1806, was the first meas- 
ure making provision for internal improvements out of the 
general funds.^ In December of this year, President J efterson 
in his annual message, in calling the attention of Congress to 
an antici])ated surplus, recommended its <^ application'^ to the 
great purx>oses of the public education, roads, rivers, canals, 
and such other objects of public improvement as it may be 
thought proper. Public men seemed to agree as to the desir- 
ableness of internal improvements, and Gallatin, the Secretary 
of the Treasury, in anticipation of the adoption of such a 
policy, had already drawn up a plan for a system of national 
turnpikes and canals. The President, however, suggested 
that amendments should be added to the Constitution dis- 
tinctly conferring this power ui>on Congress.' No action was 
taken upon this recommendation and the discussion of the 
constitutionality of such an act was reserved to a later day. 
The President again referred to the subject in his messages of 
October 27, 1807, and March 8, 1808, but no further suggestion 
was made to amend the Constitution on this subject until 
1813, when Mr. Jackson of Virginia introduced two amend- 
ments, one empowering Congress to make roads, the other 
authorizing it to construct canals in any State, with the con- 
sent of the State within which the same shall be made.^ The 
same resolutions were reintroduced by him in the remaining 
session of the Thirteenth Congress and were debated, but 
they led to no action.'* President Madison in his annual mes- 
sages of 1815 and 1816 suggested that the Government should 
undertake internal improvements. He reminded Congress 
that ^'any defect of constitutional authority which may be 
encountered can be supplied in a mode which the Constitution 
itself has providently pointed out."^ Shortly after the last 
message, Madison vetoed an act making internal improvements 



1 Statutes at Large, ii. 867. 

*App.,No. 370. 

sApp.,NoB.411,412. 

* App., Nos. 416, 417, 421, 422. 

*App.,NoB.448,457. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 261 

on the ground that it was unconstitutional^ President Mon- 
roein bis first annual message in 1817 recommended the adop- 
tion of an amendment to the Constitution conferring upon 
Congress the right in question.* 

A week later, Senator Barbour of Virginia introduced an 
amendment empowering Congress <^ to pass laws appropriating 
money for constructing roads and canals, and improving the 
navigation of water courses." No improvements were to be 
made in any State without the consent of such State.^ When- 
ever such appropriations were made the amount was to be dis- 
tributed among the several States in proportion to the number 
of Eepresentatives from each State, but the portion of any 
State, with its own consent, may be applied to internal improve- 
ments in any other State. 

May 4, 1822, President Monroe vetoed "An act for the pres- 
ervation and repair of the Cumberland road." The President 
recommended, however, that an amendment should be adopted 
giving the Federal Government power to make improvements 
for great national purposes.^ 

In his annual message of this year.'^ the President again 
invited the attention of Congress to the subject.*' In 1817 
John Quincy Adams opposed the President's purpose to men- 
tion the matter in his message. He feared it would provoke 
contest between the executive and legal departments. Further* 
he doubted the propriety of the President recommending 
amendments, inasmuch as the Constitution gave him no share 
in framing them.'' 

In response to the President's message, three amendments 
were proposed in this session of Congress, authorizing the 
appropriation of money for "great national purposes."® 

In 1824, and again in 1825, Martin Van Buren, then a mem- 
ber of the Senate, introduced an amendment giving Congress 
power to make roads and canals.^ 



I Mason's Veto Power, App. A, No. 8. 

sApp.,yo.466. 

"App., No. 467. 

* Mason's Veto Power, App. A, Ko. 9 ; also pp. 05-96. 

* Seventeenth Congress, second session. 
•App., 170.514. 

'Adams: Memoirs, IT, pp. 463-464; vn, pp. 302. Post, par., 184. 

* App., Kos. 515, 522, 528. 

* App., Nos. 536 and 546a. See Jefferson, annoyance at the victory of the liberal con- 
stnictionists. Morse's Jefferson, p. 329. See Van Buren's remarks in 1825. Debates, 
Nineteenth Congress, first session, pp. 20-21. Between 1826 and 1830, the legislatures of 
Virginia^ South Carolina, Georgia, and Alabama repeatedly passed reaolations declaring 



262 AMERICAN HISTORICAL ASSOCIATION. 

In the early part of the Nineteenth Congress (December, 
1825), Mr. Bailey of Massachusetts presented a very explicit 
amendment to the Constitution, which besides giving Congress 
power to appropriate money for constructiug roads and canals, 
further provided that it might ^'construct roads and canals for 
urgent purposes, of military, commercial, or mail communica- 
tion, etc."' 

Nothing further is heard of a constitutional amendment until 
Jackson's Administration. May 27, 1830, President Jackson 
vetoed the Maysville road bill, the first of a series of vetoes of 
internal-improvement bills.' The new test of the constitution- 
ality of such bills as laid down by him was : ^'The general prin- 
ciple that the works which might be thus aided should be of 
a general, not local ; national, not State, character.'' ^ Jackson, 
like his predecessors, Madison and Monroe, in similar cases 
recommended the adoption of an amendment. In his annual 
message of two years later (1832), and,again in 1834, he urges 
Congress "to refrain from the exercise of internal improve- 
ments" except of a national character, unless they first procure 
from the States such an amendment of the Constitution as will 
define its character and prescribe its bounds." In his message 
of 1834 he still further defines what national improvements 
were, and desired that an amendment embodying the definition 
should be adopted.* But such an amendment was not only 
impossible, but undesirable. 

About this timeMr. Archer of Virginia* suggested the expe- 
diency of amending the Constitution so as to give Congress the 
power to appropriate the revenue accruing from the sales of 
the public lands "in aid of the construction of such works of 



the appropriation of money bj^ CongreAs for internal improrement within the State to be 
unconstitutional. At the same time they pronounced the protective tariff laws nnconsti- 
tutional. The legislature of Tennessee, in 1821, passed resolutions declaring that the 
])ower ovejr internal improvements had been *' exercised to an unwarrantable extent." 
See Niles' Register, vol. xxix, p. 293: vol. xxx, p. 38; vol. xxxii,pp.l35-139; vol. xxxiii, 
pp. 325-328; vol. XXXV, pp. 309-310. This led to counter replies from other States. See 
Niles' Register, vol. xxxn, p. 189; vol. xxxin, pp. 275, 321, 347, 387, 391; vol. xxxiT, pp. 
300-302 ; vol. xxxvi, p. 55. 3 /Vm. An. Reg., 131. 136, 136-137, 137-138, 147. Jour, of Senate 
of Pennsylvania (1827-28), pp. 593-623, Ibid. (182g-29), pp. 372-381; Ibid. (1831-32), vol. ii, 
pp. 454-455. 

1 App., No. 543. 

« Mason's Veto Power, App. A, Nos. 10, 11, 12, 13, 18. The legislature of Tennessee 
expressed its approval of ' ' the views and sentiments of President Jackson " as expressed 
in this veto. Jour, of Senate of Pennsylvania (1831-32) vol. ii, pp. 454-455. 

'Mason, pp. 96-97. 

^App., Ko«. 611. House Journal, Twenty-third Congress, second session, pp. 28-32. 

<1832. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 263 

internal improvements as may be anthorized, commenced^ or 
patronized by the States respectively within which the same 
are to be executed." ' 

The legislature of Georgia, in its series of proposed amend- 
ments to the Constitution, in 1833, suggested that the practice 
of appropriating money for works of internal imx)rovement 
should be either sanctioned by an express delegation of power 
or restrained by express inhibition.^ 

No further proposal to amend the Constitution was made 
until 1847, when President Polk, in a sx)ecial message contain- 
ing his reasons for vetoing a river and harbor bill, suggested 
that the State be allowed to pay tonnage duties for internal 
improvements, but should it be impossible to secure such 
by this means, ^' it is safer and wiser to apply to the States, in 
the mode prescribed by the Constitution, for an amendment 
whereby the power of the General Government may be 
enlarged." ' 

Although several internal-improvement bills have since been 
vetoed, this is the last time an amendment to the Constitu- 
tion has been advocated. The question of the constitution- 
ality of such a bill is no longer considered by Congres, which 
now habitually exercises this once doubted power; but the 
President is left to decide each particular ca>se as it comes 
before him, whether the expenditure is national or local in its 
character. 

157. NAVIGATION LAWS AND EMBARGOES. 

Another subject which pertains both to the financial and 
commercial powers of the Government is that of the passage 
of laws regulating or taxing navigation. The first suggestion 
of an amendment on the question is found in the proposition of 
the Forth Carolina convention, in 1788.* This provides for a 
slight alteration in the last part of the sixth paragraph of the 
ninth section of the first article, so that it should read: "Nor 
shall vessels bound to a particular State be obliged to enter, 
clear, or pay duties in another; " thus striking out the restric- 
tion in regard to vessels bound from a State. 

>App., No. 809a. See also ante sec. 115. 

*App., No. 620. 

■Statesman's Manual, p. 1725. Mason's Veto Power, App. A, No. 33 ; also p. 101. 

«App., No. 101. 



264 AMERICAN HISTORICAL ASSOCIATION. 

Far more significant were the propositions made by the ratify- 
ing conventions of Virginia and North Carolina. The conven- 
tion of 1787, by a well-understood compromise had inserted no 
clause prohibiting the slave trade prior to 1808 in consideration 
that the power to tax and regulate commerce should be left free 
from any limitation as to navigation laws. The two States 
returned to the subject by urging an article prohibiting the 
passage of any law *' regulating commerce," without the con- 
sent of two-thirds of the members present in both Houses.^ 
A motion made in the Senate during the First Congress to add 
a similar proposition to the series about to be submitted to 
the States was defeated .^ 

The embargo of 1808-09, led the legislature of Massachusetts ^ 
to present to Congress an amendment limiting the duration of 
an act laying an embargo within the United States. This 
proposition called out during the year 1800-10 resolutions of 
approval from Counecticut and disapproval from Vermont, 
New Hampshire, Pennsylvania, Maryland, New Jersey, Dela- 
ware, North Carolina, and Tennessee.* The New England 
Federalists in the Hartford convention suggested the next and 
last amendment to limit the power of Congress over commerce. 
The proposals were presented to Congress in February, 1815, 
together with the others of the same series, by members from 
Connecticut and Massachusetts, as the resolutions of their 
respective State legislatures. The first of these limited the 
powers of Congress to lay an embargo for more than sixty days; 
the second provided that the concurrence of two-thirds of both 
Houses should be rec^uired *'to interdict the commercial inter- 
course between the United States and any foreign nation.'" 



< App., Nob. 33, 83. The States of Maryland, Virginia^ and Georgia had supported a some- 
what similar proviso, which should be in force to 1808, in the Federal Conyention. EUiot, 
1, 317. 

* App., No. 278. 

'The act of 1807 was in its time imlimited in dnration and could be removed only by a 
subsequent act of Congress. The constitutionality of this act was most seriously ques- 
tioned, and its constitutionality denied in the New England States. See Story, ii. pp. 
170-171. Adams, U. S. IV, pp. 416, 417. 

'App.,Nos. 397a,397b. House Journal, Eleventh Congress, second session, pp.680, 026; An- 
nals of Congress, pp. 666, 1679, 1944. House Journal, Eleventh Congress, third session, p. 17 ; 
Annals of Congress, p. 383. House Journal, Twelfth Congress, first session, p. 161. Am. 
Reg., 1809, p. 181. Massachusetts Archivon, Misc., 6062, 6663. 6665, 6816, 6823. Text of the 
Massachusetts proposition: To "thirty days after the commencement of the session of 
Congress next succeeding that session in which said law shall have been enacted." 
Resolves of Massachusetts, Vol. xii, pp. 476-477. Journal of Senate of Peikisylvania 
(1809-10), pp. 88-89. 166-169; Ibid. (1810-11), pp. 87-41; Ibid. (1811-12), pp. 9S-96. 

< App., Nos. 427, 428, 436, 436, 440, 444. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 265 

This series of -resolutions also called out counter resolutions 
from the legislatures of several of the other States.* 

The proposition to submit the power over commerce to a 
special limitation by requiring the concurrence of two-thirds of 
both Houses has never since found an advocate in Congress. 
Any such unusual and partial restriction seems unwise. 

168. BANKRUPTCY LAWS. 

The express power given to Congress to regulate bankruptcy 
has been exercised only at two different periods during the first 
century of the Constitution's life,^ and only two amendments 
have been proposed upon the subject. 

The first was proposed by the New York ratifying conven- 
tion. It contemplated restricting the power given to Congress 
by the Constitution to the passage of bankruptcy laws which 
should extend only ^^to merchants and other traders," the 
States being allowed to pass laws for the relief of other insol- 
vent debtors.' The amendment was not, however, considered 
by the First Congress. The other amendment emanated from 
a Representative from New York. Mr. Walworth, in 1832, 
presented an amendment providing that the States may enact 
bankrupt or insolvent laws until Congress shall establish 
uniform laws on the subject.^ Although no similar amendment 
has been passed, the States, whenever the Federal Govern- 
ment has refrained from legislating upon the subject, have 
exercised this power themselves, and such State laws have 
been held constitutional until Congress shall see fit to super- 
sede them by a general law.*^ 

159. PROTECTION OF TRADE-MARKS. 

At the time the Constitution was adopted no distinction 
seems to have existed in the minds of the framers between 



> House JournAl, FoartoeDth Congress, first session, pp. 278, 297, 672. See ante, par. 22. 
The New York reply declared that "the effect of these, if adopted, would be to create dis- 
sensions among the different members of the Union, to enfeeble the National Government, 
and to tempt all nations to encroach upon oar rights.' Niles', viii, p. 100. Pennsylvania 
and New Jersey replied in nearly similar words. See, also, Niles', Vol. vii, Sup., pp. 49-53. 
J. Q. Adams said that, if adopted, they " would not have left enough of that instrument 
remaining to call it a ruin." Adams, New England Federalism, pp. 315-317 Holmes of 
Massachusetts showed that one- third of the Senate might be less than one-fifth of the 
nation, and more than one-thinl of the House, bo the Representatives of three States out 
of the eighteen." Niles' Register, Vol. vii, pp. 49-53. 

*In 1841 and in 1867 laws were passed. The last law was repealed in 1878. 

*App.,No. 64. 

*App.,No. 508. 

*Sturges V. Crowlngshiold, 4 Wheaton, 122. Ogden r. Saunders, 12 Wheaton, 213. 



266 AMERICAN HISTORICAL ASSOCIATION. 

copyright or patents and trademarks. Oongress passed an 
act protecting trade<marks, but in 1879 the Supreme Court 
held that a trade-mark was not within the meaning of the 
clause^ in the Constitution which was intended to protect 
authors and inventors, but could be referred only to the com- 
merce clause. Legislation, therefore, must be limited to the 
use of trade-marks in commerce ^^ with foreign nations, among 
the several States, and the Indian tribes." The law passed 
by Congress was not so limited, but it embraced all commerce, 
therefore it was declared void for want of constitutional 
authority.' 

Upon the reassembling of Congress in December of this 
year, Mr. McCoid of Iowa, in consequence of this decision, 
proposed an amendment conferring upon Congress the power 
to grant, protect, and regulate the exclusive right to adopt 
and use trade-marks. This resolution was first referred to the 
Committee on Manufactures, reported, and recommitted to the 
same committee; later, referred to the Committee on the Judi- 
ciary, and twice recommitted to the same.^ In the next Con- 
gress it was again introduced, but this time no important 
action was taken.^ 

Although no amendment has been secured. Congress has 
gone to the limit of its power as indicated by the court. On 
the 3d of March, 1881, a law was passed applying to trade- 
marks in connection with commerce between States, foreign 
nations, and the Indian tribes.^ 

IflO. THE STATUS OF COMMERCIAL POWERS. 

On the whole, the Constitution confers upon Congress more 
sweeping jwwer over commerce than over any other subject. 
The exercise of this power has in the past caused the most 
friction, and it is the most likely to lead to collisions with the 
States in the future. Hence it is remarkable that so few 
amendments have been offered on the essentials of this power. 
No proposition whatever has been made to amend the Con- 
stitution in regard to foreign or interstate commerce. 

The great power of chartering corporations, banks, and kin- 
dred institutions, notwithstanding frequent remonstrance, has 
been successfully asserted. The legal-tender notes, although 



> CoBst., Art. 1. 860. 8, cl. 8. * App., Ko. 1539. 

3 TradeMark CMOS, 100 U. S., 82 (1879). •21 SUt. L., 502. 

* App., No. 1496. 



PROPOSED AMENDMENTS TO THE CONRTITUTTON. 267 

they are naturally a part of the coining power, yet practically 
they can be placed on a commercial basis. The last decision 
of the Supreme Court in regard to the legal-tender notes has 
been acc^uiesced in, although not without x)rotest. 

Tiie internal-improvement policy, which was so long consid- 
ered a doubtful use of the powers of the Government, has 
finally been established without amendment. In addition, 
protective tariffs, navigation acts, and embargoes have been 
carried out. In conclusion, therefore, it would seem that there 
is little need of an amendment to secure powers already so 
fully exercised, and that there is no hope of obtaining any 
amendment restricting the powers of Congress in this sphere. 

161. FOREIGN AFFAIRS— THE TREATY-MAKING POWER. 

Difficulties had arisen, during the Confederation, out of the 
obstinacy of the States in performing acts forbidden by trea- 
ties with foreign nations.^ The treaty power in the new Con- 
stitution was therefore very simple and explicit.*^ The Virginia 
and North Carolina ratifying conventions proposed an article 
providing that no commercial treaty shall be ratified without 
the concurrence of two-thirds of the Senate, " but no treaty 
dealing with the territorial rights and claims of the United 
States, or their rights of fishing in the American seas or navi- 
gating the American rivers, shall be made except in case of 
the most urgent and extreme necessity." In such cases no 
treaty shall be ratified without the concurrence of three-fourths 
of the whole number of members of both Houses.^ A motion 
to add this identical proposition to the series to be recom- 
mended to the States was negatived by the Senate in the First 
Congress.^ 

The North Carolina convention also proposed another amend- 
ment with reference to the validity of treaties.^ By its terms 
no treaty which was opposed to the existing laws of the United 
States should be valid until such laws were repealed, nor should 

> Story, II, p. 580-582. 

* ** He (the President) shall hayo power, by and wiUi the adTioe of the Senate, to make 
treaties, provided two-thirds of the Senators present concnr." Art. ii, sec. 11, d. 2. 
Story, II, pp. 324-337 ; 580-585, notes. In the Federal Convention a proposition to reqaire 
the assent of two-thirds of all the members of the Senate was rc^jected by a vote of six 
States against five. Journal of Congress, 843-344 

* App., Nob. 32, 84. 

* App., No. 277. 
< App., No. 100. 



268 AMERICAN HISTORICAL ASSOCIATION. 

any treaty be valid which was contradictory to the Constitu- 
tion.* 

The qnestion wliether the House of Representatives has the 
right to practically annul a treaty made in accordance with 
the Constitution, l)y withholding the appropriations necessary 
to carry out its i)rovisions, has frequently given rise to very 
sharp and interesting debates. Although the House has 
sometimes threatened to withhold its cooperation, especially 
in the case of the Jay Treaty, it has never yet done so. As a 
result of the opposition to the Jay Treaty, the legislature of 
Virginia, before the close of the year in which it was adopted, 
passed resolutions recommending an amendment which pro- 
vided ^Hhat no treaty containing any stipulation upon the 
subject of the powers vested in Congress shall become the 
supreme law of the land until it shall have been approved in 
those particulars by a majority in the House of Kepresenta- 
tives, and that the President before he shall ratify any treaty 
shall submit the same to the House of Representatives."* 
This amendment does not seem to have received further 
indorsement at this time ; moreover, it is somewhat remarkable, 
in view of the facts previously mentioned, that no similar sug- 
gestion to amend the Constitution was made until 1884.^ In 
that year there was before the Senate a series of commercial 
treaties of such a nature that the power of Congress to levy 
duties oil certain merchandise would be restricted thereby. 
This fact undoubtedly suggested the two amendments pro- 
posed in December of this year. One of them, introduced by 
Mr. Townshend of Illinois, provided that treaties should be 
made by and with the advice of the House of Representatives 
as well as the Senate.^ The other, presented by Mr. Blanchard 
of Louisiana, required that the prior consent of Congress 
should be necessary to make reciprocity treaties afifectiug the 
revenues.'^ Mr. Blanchard reintroduced the same amendment 
the following year.** 



I The courts have held when the provision of a law and a treaty conflict, the laHt in 
point of time muAt rontrol. Cooley, Const'al Law, pp. 30-31, note 8. 

'App.,No.327H. 

"The Hawaiian reciprocity treaty of 1876 seems to acknowledge the claims of the 
Honse to pass npo;i treaties affecting the revenne, for it provided that it should not go 
into effect until tlie passage of an act of Congress to carry it into effect. The act was 
passed and apjiroved August 15, 1878. 

* App., No 1632. The same proposition was made in the Convention of 1787, but r^ected, 
ten States against one. Journal of Convention, 839-340. 

» App.. No. 1634. 

*App.,No.l648. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 269 

In the tariff act of 1890 a contrary tendency was yisible. 
Congress authorized the President, by law, to reestablish cer- 
tain daties as to particular nations, unless he could secure 
treaties by which these nations granted certain commercial 
privileges. 

162. WAR POWERS— DECLARATION OF WAR. 

Since the Government of the Confederation had been created 
with express reference to carrying on the war with Great 
Britain, the powers in that respect were more complete than 
in its powers over foreign affairs. There was no difficulty in 
securing a liberal clause in the Constitution as to the declara- 
tion of war, the maintenance and discipline of armies, and the 
raising and employment of militia. These powers have been 
little disputed except during the war of 1812 and the civil war, 
and few efforts were made in these crises to curtail them. 

Two attempts have been made to place the power to declare 
war under a s])ecial restriction. The New York and Rhode 
Island ratifying conventions proposed that an amendment 
should be made to the Constitution, to the effect that Congress 
should not declare war without the concurrence of two thirds 
of both Houses.^ No similar amendment was suggested until 
the report of the Hartford convention was presented to Con- 
gress, in 1815. One of the amendments of this interesting 
series proposed a like restriction upon the powers of Congress, 
the only exception x>ermitted was for the defense of the terri- 
tories of the United States when actually invaded.* 

Another of the propositions of the indefatigable convention 
of North Carolina was that Congress should not introduce 
foreign troops into the United States without the consent of 
two-thirds of the members of both Houses.^ Still another, 
submitted by the Rhode Island convention in 1790, stipulated 
that no person should be compelled to do military duty other- 
wise than by voluntary enlistment, except in cases of general 
invasion.* 

163. WAR POWERS— THE ARMT. 

A curious evidence of the prevalent fear that the republican 
government might be destroyed is seen in the amendments 

'App., Noa.54,117. 

* App., Nm. 429, 137, 445. For roplioH of other Statin, see ante, pan. 22, 157. The report 
of the New York committee declares, if this amendment were adopted, "no nation would 
ever fear our power." Nilcs', Vol. vm, p. 100. 

"App., No. 103. 

« App., "No. 100. 



270 AMERICAN HISTORICAL ASSOCIATION. 

proposed in 1788-39, relating to the war power. The ratifying 
conventions of five States* desired that no standing army 
shoald be kept up in time of peace withont the consent of a 
very large majority of both Houses of Congress. Some of 
these placed the majority required at three-fourths of the 
members of each House, others at two-thirds.^ Two amend- 
ments of a similar character were rejected by the Senate in 
1789.3 

The same effect was sought by other amendments urged by 
the Virginia and North Carolina conventions. They would 
have prohibited the enlistment of soldiers for any longer term 
than four years, except in time of war, and then for no longer 
t«rm than the continuance of the war/ Two attempts in the 
First Congress to secure similar amendments were defeated.^ 

164. THE MILITIA. 

Even the paragraph as to the militia^ did not escape cen- 
sure. The Virginia and North Carolina conventions proposed 
still another amendment on the war x>ower, which conferred 
upon each State the power of organizing, arming, and disciplin- 
ing its own militia, whenever Congress should omit to provide 
for the same, and in addition that the militia should not be 
subject to martial law except when in actual service.' This 
amendment, also, the Senate in 1789 declined to recommend to 
the States." 

The New York ratifying convention proposed an amend- 
ment providing that the militia of a State should not be com- 
pelled to serve without its limits for a longer term than six 
weeks without the consent of the legislature of its State.^ 

No further amendments in regard to the militia were pro- 
posed until after the war of 1812. In that war the militia, 
upon which great reliance had been placed, proved ineflBcient, 



' New Hamptthire, Virginia, New Jersey, North Carolina, and Bhode Island. Story, ii, 
m, note. Individual liberty was guarded from the military power by the second and 
third amendmentH. 

* App., Noe. 23, 34, 52, 86, 115. 

* App., Noa. 252, 280. 
« App., No8.35,87. 

* App., Nos. 252, 281. 

* " Congress shall have power to provide for organising, arming, and disciplining the 
militia, and for governing such part of them as may be employed in the service of the 
United States." Const., Art. i, sec. 8, cl. 16. 

' App., Nos. 36, 88. 

* App., No. 282. See Story, u, 112-U4. 

* App., No. 74. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 271 

aud the New Eui^land States had declined to send their militia 
outside of their own borders on the call of the Government. 
It is not surprising, therefore, that in 1817, and again in 1818, ' 
General Harrison of Ohio introduced an amendment which 
should give Congress power, concurrently with the States, to 
provide for the training of the militia, and also '^for teaching 
in the primary schools and other seminaries of learning in the 
several States the system of discipline prescribed for the mili- 
tia,'' in order that the militia might become ^^a safe and efiec- 
tual national defense.'' 

165. MLLITAKY PENSIONS. 

One consequence of the war and financial i)owers, taken 
together, seems to have escaped the attention of the Conven- 
tion. The question of half pay to the Revolutionary officers 
had caused the Newburgh address of 1783. Under the new 
Constitution, Congress made many grants, and especially very 
liberal land grants to old soldiers. As the arable lands were 
not sufficient after the civil war, a very liberal and even waste- 
ful scale of pensions was adopted. One amendment has been 
proposed to prevent the repeal of the general pension laws, or 
the decrease of the rate of pension granted under the same 
It was introduced in the Fiftieth Congress, by Mr. Peters of 
Kansas.^ No such provision seems necessary; the payment 
once begun can hardly be withdrawn, except by the gradual 
dying ott' of the recipients. 

166. POLICE POWER. 

In the division of powers between the States and the Gen- 
eral Government, it seems to have been intended that to the 
States should be left entire control over internal order, aud the 
relations of man with man, except as the relations grew out of 
Federal law. Questions of morality, of the relation of em- 
ployer and employed, of education, have wisely been committed 
to smaller communities. Four dift'ereiit questions, however, 
have suggested an extension of the nation's powers; they are 
polygamy, divorce, the traffic in intoxicating hquors, and the 
protection of labor.^ 

>App.,NoB.464,470. 

»App.,No. 1714. 

*The amendments on divorce are couaidered under Personal delations, ante, par. 102. 



272 AMERICAN HISTORICAL ASSOCIATION. 

1«7. PROHIBITION OP POLYGAMY. 

From aboat 1850 the establishment of the Mormons in Utah 
has kept the question of polygamy before the pnblic mind. 
Congress has by repeated measures attempted to stamp it out 
in the Territories, but no control could be exercised over State 
action on this subject. 

President Grant in his annual message in 1875 suggested 
that an amendment prohibiting polygamy should be recom- 
mended to the States for their adoption.^ Ko immediate action 
was taken on this suggestion. In 1879 the first proposed 
amendment dealing with the question was introduced by Mr. 
Burrows.' Since 1882 there have been seventeen amendments 
prohibiting polygamy, or polygamy and bigamy, within the 
United States, presented to Congress.^ A few of these have 
been reported favorably ftx>m the committees. During the 
Fiftieth Congress eight such amendments were proposed, one 
of which was framed by the Committee on the Judiciary,^ but 
Congress has not deemed it necessary to wait for an amend- 
ment to enable it to deal with polygamy. 

IW. THE MANUFACTURE AND SALE OF INTOXICATrNO LIQUORS 

PROHIBITED. 

From the beginning of the Washingtonian movement the 
States have been urged to pass laws restraining or prohibiting 
the traflQc in liquors. It is only in very recent years that like 
suggestions have been made as to national legislation. There 
have been fourteen resolutions presented in Congress to amend 
the Constitution so as to prohibit the manufacture and sale of 
intoxicating liquors.^ The first of these was introduced by 
Mr. Blair of Kew Hampshire, at that time a member of the 
House,^ in December, 1876. During the same session of Con- 
gress the legislature of Maine presented to Congress a resolu- 
tion praying for the passage of this resolution. Mr. Blair has 
not failed to introduce a similar amendment in any subsequent 
Congress.*' Since 1881 Senator Plumb of Kansas vied with 

^Appm No. 18fX). 

>App., Ko. 1500. 

*App., Nos. 15U, 1567, 1584. 1597, 16U, 1077. 1678, 1079. 1080, 1088, 1002, 1700, 1710, 1713, 
1718. 1718, 1784. 

«App., No. 1718. 

•App., Nos. 1433, 1400, 1521, 1522. 1523, U24, 1549, L562, 1577, 1810, 1035, 1037, 1090, 1090. 

•App., No. 1438. 

'App., NO6.1400, 1521. 1522, 1577, 1030, 1090. His resolution pivvided Uiat "the assent 
of anv State to the article shall not be rescinded nor reversed." 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 273 

him in presenting prohibitory amendments. Although several 
of these amendments have been reported from the committee, 
no important action has been secured. 

To counteract the prohibitory movement, there was intro- 
duced, ill 1884, by Mr. Deuster of Wisconsin, an amendment 
to prevent Congress or the legislature of any State or Territory 
enacting ** any law prohibiting or abridging the manufacture 
or sale of any article or merchandise composed or prepared in 
whole or in part of any product of the soil." ^ Recent deci- 
sions of the Supreme Court deny to the States any power to 
interfere in the traffic in liquors imported from other States 
and sold in the original packages.^ The whole subject is how- 
ever so confused that a constitutional amendment affirming the 
power of the States to regulate the traffic seems desirable. 

189. PROTECTION TO LAROR. 

Within recent years, a number of amendments have been 
proposed which denote a tendency toward paternalism. Con 
gress has passed an act fixing eight hours as the standard 
day's labor in the Government service,^ and has also prohibited 
the immigration of persons under contract. Acts have also 
been passed against the use of convict labor on Government 
contracts. Repeated eftbrts have been made to ingraft pro- 
visions on all these subjects into the Constitution.. In 1884 
Mr. Davis of Massachusetts proposed an amendment, giving 
Congress power to regulate the hours of labor* "which persons 
may be employed in the manufacture of textile fabrics, and in 
other industries.'' This resolution was reported from the Com- 
mittee on Labor, but was not reached on the Calendar. This 
same amendment has been reintroduced twice by Mr. Davis.'^ 
The first amendment prohibiting the contracting of convict 
labor was introduced by Mr. Fiedler of New Jersey, in 1883.*^ 
The amendment was reported unamended from the Committee 



1 App., Ko. 1613. Prohibition ameudmeDta to the State coDstitutioii were adopted in 
the following States: Kansas, in 1880; Iowa, in 1882; Maine, in 1884; Rhode Island, in 
1886, since repealed. 

* Leisy v. Hardin, 135 U. S., 100. Conj^ress immediately passed an act extending to the 
States authority over this sabject. 26 Stat, at Large, 313. See C(M)ley Constitutional 
Law, p. 70, note 5. 

>The conHtitution of California of 1879 led the way by prescribing eight hours as a legal 
day's work on all public works. Seventeen other States, either b3' statute or const itutional 
provision, have regulations in regard to an eight-hour labor day. 

•App., Xo. 1604. 

6App.,Nos. 1651,1702. 

^App-.No. 1592. 

U. Poc, 353, pt 3 ;« 



274 AMERICAN HISTORICAL ASSOCIATION. 

on Labor. In 1886 two additional amendments on this same 
subject were presented, the one by Mr..Lovering of Massachu- 
setts, the other by Mr. Willis of Kentucky.^ 

170. EDUCATION. 

Among the subjects which were distinctly intended by the 
Constitution to be left to the States was the regulation of edu- 
cation.^ The New England States, in 1789, had the best system 
of public schools, although poor and little developed, but en- 
tirely subject to State control. In the Northwest ordinance, 
provision was made for later free schools, and laud was set 
apart for the purpose. As each Territory was formed a similar 
reservation of land was made. Later Congresses reserved 
land for future State universities. In 1862 a large grant of 
land scrip was made to all of the States for the establishment 
of agricultural colleges. Still later, Congress appropriated 
money for schools among the freedmen.^ In 1888 and 1889 a 
large sum was appropriated for "experimental stations" in the 
States, and in 1891 new subsidies were given to State univer- 
sities. Thus the readiness of Congress to cooperate with the 
States by gifts of land and money has been shown. In addi- 
tion, a series of amendments have been offered looking either 
to the establishment of national institutions of learning or to 
enforce the establishment and support of schools by the States. 

171. ESTABLISHMENT OF A NATIONAL UNIVERSITY. 

In view of an anticipated surplus. President Jefferson in his 
annual message of 1806 recommended the adoption of an 
amendment permitting the application of such a surplus to 
the i)urpose of *^ tlie public education '' and internal improve- 
ments. He suggested that a national university should be 
established.* No further amendment on this subject was pre- 
sented for ten years. In 1816 Mr. Atherton of New Hamp- 
shire urged such a measure, but the House declined to con- 
sider it.^ In the next year President Monroe in his first annual 
message suggested " that it be recommended to the States to 



1 App., Noa. 1666, 1669. 

*Iu the coDvention of 1787 a motion to establish a National University was defeatedi 
4 to 6, one SUte divided. Elliot, v, 544. 

* Hart's, Disposition of Our Public Lands, in Quarterly Journal of Economics, Yol. i, 
pp. 169, 251. 

* story, II, 165, 192. App., No. 376. Adams, Writings of Gallatin, Vol. i, pp. 31^^19. Fof 
Washington's plans for a National University, see Dr. Goodc's monograph, Am. Hist. 
Association, Papers, Vol. iv, part 2. B. A. Hinsdale, Views of the Presidents in relatioi^ 
to a National University. 

*App.,No.461. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 275 

inclade in the ameudment" proposed sanctioniDg internal 
improvement "a right in Congress to institute seminaries of 
learning." ^ Only one other amendment relative to the estab- 
lishment of a national university has been proposed; this was 
presented by Mr. Bailey of Massachusetts, in 1825, in his res- 
olution empowering Congress to make internal improvements, 
to promote education, colonization, and the liberal and useful 
arts.* 

172. THE STATES TO PROVIDE FREE PUBLIC SCHOOLS. 

No attempt to secure or control common school education by 
the National Government was made until the end of the civil 
war. Soon steps seemed necessary for the elevation of the 
recently emancipated slaves. The Southern States were at 
first hostile to any effort to educate the negro. It seemed to 
statesmen who had freed the slaves that they must not only 
guarantee to them civil and political rights, but also give them 
the opportunity of securing an education. 

To that end, Mr. Delano of Ohio, in 1865, and Messrs. Kelso 
of Missouri and Ashley of Ohio, in 1867, introduced amend- 
ments providing that each State shall establish and maintain 
a thorough and efficient system of free public schools through 
out the State, sufficiently numerous for the accommodation of 
all the children of the State.^ 

In 1871 Senator Stewart proposed an amendment stipulating 
that " there should be maintained in each State and Territory 
a system of free common schools."* In 1874 Senator Stewart 
presented a new amendment upon the subject, providing that 
in case any State fail to maintain a common school system 
under which all persons between the ages of five and eighteen 
years shall receive free of charge such elementary education 
as Congress may prescribe, " the Congress shall have i)ower 
to establish therein such a system and cause the same to be 
maintained at the expense of such State.'' ^ 

In 1875 President Grant in his annual message earnestly 
recommended an amendment " making it the duty of each of 
the several States to establish and forever maintain free public 
schools for all the children.^ Several amendments were shortly 



' App.,Ko.466. 
« App., No. 543. 

> App., No8. 1060, 1197, 1222. In case a State shall neglect to carry this into effect, It 
fell to the duty of Con§re«s to enforce the game. 
* App., No. 1342. Beported favorably, but postponed. 
 App., No. 1384. 
•App., No.1397. 



276 AMERICAN HISTORICAL ASSOCIATION. 

submitted in regard to the appropriation of money to sectarian 
schools.' One of these provided that a system of free common 
schools should be maintained in each State and Territory.* 
Since that time only four amendments have been presented. 
One, introduced by Mr. McCoid of Iowa, in 1880,^ made pro- 
vision for the establishment and maintenance by each State of 
a system of free public schools,* and stipulated that " no citi- 
zen of the United States, born therein after the adoption of 
this amendment, who has not attended public or other schools 
for the period of five years, and who is unable to read and 
write, shall be entitled to vote," or be counted in the enumera- 
tion for Eepresentatives. This resolution further provided 
that the failure of any State within two years after the adop- 
tion of this article to carry out its provisions should bo deemed 
a failure to maintain a republican form of government, and 
Congress may deprive it of its representation in Congress or 
in the electoral college until it shall comply with the condi- 
tion imposed by Congress. An amendment, introduced by Mr. 
Brown in 1884, for the protection of civil rights, aimed to 
secure the enjoyment of equal privileges and advantages in 
their attendance upon the common schools, to all persons 
within the United States.* 

The remaining two were offered in the Fiftieth Congress; 
one empowering Congress to grant aid to the common school 
system of the several States,^ the other, championed by Sena- 
tor Blair, provided that each State should establish and main- 
tain a system of free public schools, and the United States 
should guarantee the support and maintenance of such a sys- 
tem.^ Most of the States now show a commendable zeal in 
taxing themselves for their ow^n educational systems. The 
Blair bill, appropriating $77,000,000 of the national fund to 
State schools, finally failed, and it seems likely that no further 
attempts will be made to amend the Constitution in this par- 
ticular. 

 Sec poet, par. 173. 

* Mr. Sargent of California, App., No. 1401. 

 App., No. 1514. 

* *' Schools must be kept during eight months of each year, for the attendance of all 
children between the ages of 5 and 21, without distinction or separation on account of 
race, color, or social condition." S(M3 ante, pars. 79, 132. 

»App., No. 1612. 

" App., No. 1711. Not to exceed $10,000,000 annually, to bo distributed pro rata among 
the States. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 277 

An amendment of another character was presented in 1871. 
It provided that the fourteenth amendment should not be con- 
strued as prohibiting the States from making and enforcing 
laws for the separate education of the white and the colored 
races.^ The fourteenth amendment has not been held by the 
courts as prohibiting the separate education of the two races, 
so long as equal provisions for their education are made.' 

173. RELIGION. 

Since the adoption of the first amendment, there has been no 
amendment suggested on the subject of religion until recent 

years.' 

Included in several of the amendments on education, were 
clauses setting forth that no sectarian use should be made of 
public school funds,^ and in several cases distinctly guarantee- 
ing religious liberty. President Grant, in connection with his 
recommendation of public schools, in his message of 1875 fur- 
ther advised forbidding the teaching in such schools of any 
particular religious tenets and prohibiting the granting of any 
school funds and school taxes for the benefit of any religious 
sect.^ He also suggested an amendment declaring ^< the church 
and state forever separate and distinct, but each free within 
their proper spheres, and that all church property shall bear 
its own proportion of taxation."^ In the House immediate 
action was taken in accordance with the President's recom- 
mendation. Mr. Blaine introduced a resolution that embodied 
a part of the changes suggested by the President."' This 
amendment provided that ^^no State shall make any law 
respecting an establishment of religion or prohibiting the free 
exercise thereof," and it prohibited the appropriation of public 
school money by any State to sectarian schools. In Mr. Stew- 
art's amendment of 1871 there had been a provision similar 
to this last clause.' The "Blaine amendment," after slight 



> App., "So. 1339. Also prohibited the intermarriage of the races. See ante, par. 102. 
No. 1514 forbade separation (see previous page). 

> Coses cited in Cooley, Principles of Constitutional Law, p. 242, note 3. The constitu- 
tions of WoHt Virginia, North Carolina, Tennessee, Missoari, Texas, Georgia, and Ala- 
bama provide that white and colored children shall be tanght in separate schools. 
Hitchcock, American State Constitutions, p. 26. 

'See Stevens, Sources of the Constitution of the United States, pp. 214, note 1.218; 
Elliot's Deb., v, p. 131. 

* First proposed by Mr. Burdett in 1870. App., No. 1329. 
•App., No. 1397. 

• App., No. 1398. 
»App.,No.l40L 

 App., No. 1342. Ante, par. 172. 



278 AMERICAN HISTORICAL ASSOCIATIOIT. 

modification a, passed the House August 4, 1876, by a vote of 
180 to 7. When the amendment was presented to the Senate, 
Senators Frelinghuysen, Sargent, and Christiancy immedi- 
ately proposed substitutes.^ The Committee on the Judiciary 
reported the amendment in more explicit terms, and it received 
28 votes. The negative votes were, however, 16, and it thus 
failed for the lack of a two-thirds vote.* 

Five other amendments dealing with this subject have since 
been introduced, three in the House at this same session of 
Congress.^ One of these, presented by Mr. O'Brien of Mary- 
land, in addition to provisions similar to those in the Blaine 
amendment, contained a clause modeled after a provision in 
the Maryland constitution, excluding ministers and preachers 
of the gospel of any denomination from holding any office 
under the United States,* and in addition forbade the require- 
ment of any religious test as a qualification for any office in 
any State or under the United States.^ Mr. Edmunds, in 1878, 
attempted to revive the subject in the Senate.® 

The amendment submitted by Senator Blair, in 1888, in addi- 
tion to the provision previously considered, stipulated that no 
State should maintain an establishment of religion, and for- 
bade appropriation for sectarian schools.'' 

The provisions of the State constitutions are in almost all 
instances adequate on this subject, and no amendment is likely 
to be secured.^ 



> App., No. 1401. 

*The Republican platform of 1876 recommeuded an amendment "forbidding the appli- 
cation of any public funds or property for th(* benefit of any schools or inntitutions under 
sectarian control/' In 1880 it r(>commende<l an amendment to prohibit the legialatnre of 
a State making any law re-specting the establishment of religion and appropriating pub- 
lic funds to the support of sectarian schools. 

s App., Nos. 1410, 1413, 1428, 1459, 1514. 

^The following States in their constitutions also excluded clergymen from holding 
office: Maryland, constitution of 18G7, art. 3, sec. 11 ; also in the constitution of N'cw York 
of 1821, art. 7, sec. 4; North Carolina constitution of 1776, art, 31; constitution of South 
Carolina of 1790, art. 1, sec. 23, and constitution of 1865, sec. 30; Delaware, art. 7, sec. 8 
(while he cofatinues to exercist^ pastoral functions) ; Kentucky, art. 2, sec. 27; Tennessee, 
art. 9, sec. 1. Active clergy are also excladod from House of Commons. May, FarL Prac- 
tice, p. 30. 

•App., No#1410. 

'App., No. 1459. The article was not to be construed to prolxibit the reading of the 
Bible in any school or institution. 

^ App., No. 1727. Ante, par. 172. 

"At least twenty- three States have constitutional barriers to sectarian appropriationa. 
Many petitions to "put God in the Constitution '' have been received, but no formal reso- 
lution to amend to that efl'cct has been found during the first century. In the Pifty- 
fourth Congress such an amendment has been introduoed. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 279 

. 174. SUMMARY OF AMENDMENTS ON THE POWERS OF THE 

GOVERNMENT. 

With the exception of the subject of personal relations, the 
number of amendments proposing: a change in the provisions 
of the Constitution afi'ecting the powers of the (jovernment 
has been comparatively small. Only about three hundred in 
all have been presented. With the exception of the early years, 
the larger number of the proposed amendments have contera- 
X)lated an extension of the power conferred upon Congress 
rather than the placing of restrictions upon its actions. Of 
these, three have received the indorsement of the House of 
Representatives. The provisions of the one passed in 1865, 
prohibiting the payment of the Confederate debt,^ were later 
incorporated into the fourteenth amendment.* Of the other 
two, passed respectively in 1876 and 1878, the one prohibited 
the appropriation of any money or property to any religious 
sect,^ the other forbade the payment of claims to disloyal per- 
sons.* Both failed to receive the approval of the Senate. 

The wisdom of the members of the Convention of 1787 in 
defining the powers of the Government in broad and general 
terms has become more and more evident as time has elapsed, 
for, owing to this fact, it has been possible to readily adapt the 
Constitution to the changed conditions and circumstances of 
advancing years. The doctrine of implied powers has been 
accepted to such an extent that in the most important cases 
where amendments have been sought, the same results have 
been secured without their adoption.^ 

To a much smaller degree has it been possible to secure any 
change by these unwritten amendments of the provisions of 
the Constitution prescribing the form of the government, for 
here the Constitution admits of less freedom of interpretation, 
being very much more explicit in its terms. 

175. PROPOSITION TO CHANGE THE NAME OF THE COUNTRY. 

One interesting proposition — which it has been impossible 
to classify elsewhere — to change the name of our country has 
been introduced. This singular amendment was presented by 

» App. No. 1057. 
»App. No. 1189. 
« App. No. 1401. 
* App. No. 1477. 

« Post, par. 188. Tiedman, The Unwritten ConHtitntion of the United States, pp. 42=44; 
Story, ilf p. 165; McMoater, in Shaler's, United States, ll, p. 500. 



280 AMERICAN HISTORICAL ASSOCIATION. 

Mr. Anderson of Missouri, in 1866. He proposed, in case the 
Constitution was again to be opened for amendment, that our 
country should hereafter "be known and styled America,'' 
inasmuch as its present name was "not sufficiently compre- 
hensive and significant to indicate the real unity and destiny 
of the American people as the eventual, paramount power of 
this hemisphere." ^ 



'App., N0.UO6. 



(Chapter VT. 
procedure as to constitutional amendments. 

176. method of amendment. 

The Constitution of the United States, in Article v, provides 
for its own amendment whenever two thirds of the Houses of 
Congress, or a convention called upon the api)lication of two- 
thirds of the State legislatures, shall propose amendments, 
which in either case shall be valid when ratified by the leg- 
islatures of or conventions in three-fourths of the several 
States, as Congress may direct.^ 

Thus it appears that amendments may be proposed in one 
of two ways— either by Congress or a convention called by 
Congress in response to the request of the necessary number 
of the State legislatures. Also discretionary power is given to 
Congress to choose one of the two methods of ratification per- 
missible, namely, either by the legislatures of States or by 
conventions in the several States. The amount of discretion 
allowed in this clause plainly indicates the expectation of the 
framers of the Constitution, that the amending machinery would 
be frequently put into operation.* It is therefore remarkable 
that only one of the methods of proposing amendments has 
been used, and that it has always been accompanied by one 
method of ratification.^ 

177. GENEKAL CONVENTIONS. 

In making provision for a Federal convention,* the framers 
of the Constitution doubtless had in mind the possibility of a 
future fundamental revision, and in addition wished to pro- 
vide when necessary for a body having a direct mandate from 
the people to propose amendments.^ The fact that nearly two 



1 Of the two exceptions ennmerated in the article one is obsolete; the other, in regard to 
equal representation of a State in the Senate, has as mnch force to-day as ever. 

'See Hamilton's remarks in the Federal Convention, Elliot, v, 530. 

"With the exception of the proposed thirteenth amendment in 1861, which was ratified 
by a convention in lUinolH in 1862. See post, par. 179. 

* The first provision n/i^reod to for securing amendments provided only for a convention, 
on application of the legislatures of two-thirds of the States, August 6, 1787. Elliot, v. 
381. 

* See advantages of a convention referred to by Nicholas in the Virginia convention, 

ibid., Ill, 101-102. 

281 



282 AMERICAN HISTORICAL ASSOCIATION. 

hundred constitutional conventions have been called to frame 
or revise the State constitutions,' renders it all the more 
remarkable that this method of proposing amendments to the 
Constitution of the United States has never been put in oper- 
ation. This may be accounted for in part by the fact that 
there has never been a time when a general revision of the 
Constitution has been widely desired. Although conventions 
for the proposal or ratification of amendments have never 
been assembled, yet occasions have arisen when their trial 
has been urged. Passing over the propositions for a second 
convention, which were made in the Federal Convention itself, 
and in the States at the time of their ratification of the Con- 
stitution,^ we find that the Government had scarcely been 
established when Virginia and New York made application for 
a convention to draft amendments.^ In the winter of 1832-33, 
the legislature of South Carolina passed resolutions declaring 
it " expedient that a convention of the States be called as 
early as practicable to consider and determine such questions 
of disputed powers as have arisen between the States of this 
Confedera<*.y and the General Government."* This seems to 
have led to the legislatures of Georgia and Alabama passing 
resolutions in conformity to Article V, petitioning Congress 
to call a Federal convention to consider the proposal of amend- 
ments.^ The legislature of Delaware, on the other hand, in 
reply to the resolution* of South Carolina, declared that 
the Constitution does not recognize any sucli tribunal or polit- 
ical assemblage as a convention of the States, but ha« pro- 
vided for modes of amendment, if amendment be necessary, in 
the fifth article; * * • "any other mode, therefore, must 
be repugnant to its provisions ;'' that any such convention 
" must be a convention of the people," " and not a conven- 
tion of the States;"^ and "that it is not expedient for Con- 
gress to call a convention for proposing amendments at this 
time." "^ 



'Jameson, CoDRtitutional Convention, p. 550. Tiedman, Unwritten Constitution, p. 42. 

" Article by E. 1*. Smith in Jamenou's Eusays, p. 46. 

»App.,No«. 125, 126. 

^Senate J onrnal, Twenty-second Congress, second session, p. 83. 

» App., Nob. 612a, 613-025. 

• " That such a convention of the States, if asHombled, conid have no such power as that 
set forth by the reHolutions of South Carolina." 

' Senate Journal, Twenty stMMjnd Confess, second session, pp. 157-158. For Resolves of 
Massachusetts in disapproval to Resolves of South Ciiroliua, see Resolves of Massa- 
chusettH, Vol. XIX, pp. 401-402; for report and rejily of Massachusetta legishituro disap- 
proving of the Georgia resolutions, sm ibid., pp. 411-423. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 283 

Again, in the sessions of Congress just previona to the 
rebellion, when there was a general desire that every means 
should be tried before resorting to a civil war, petitions from 
the legislatures of six States,^ besides nine propositions from 
members of Congress, were received calling for a drafting con- 
vention.^ On the invitation of Virginia, a peace convention 
was also held, at which commissioners from twenty-one States 
were present.^ As a result of its work, the convention recom- 
mended to Congress a series of amendments to the Consti- 
tution.* In this same session of Congress, Mr. Florence of 
Pennsylvania offered the following singular amendment: "The 
reserved power of the people in three-fourths of the States to 
call and form a national convention to alter, amend, or abolish 
this Constitution, according to its provisions, shall never be 
questioned, notwithstanding the direction in Article V of the 
Constitution." 5 

Propositions for a convention were also offered at three differ- 
ent times during the period of the civil war, and again in 1866.^ 
Of those presented during the course of the war, the first 
was introduced by Mr. Vallandigham, in 1861, the other two 
by Senator Davis of Kentucky, who proposed such a conven- 
tion of the States for the purpose of bringing about the restora- 
tion of peace and the Union.^ 



1 Virginia, Kentucky, New Jersey, Ohio, niinois, and Indiana. The convention in Mis- 
Bonri also approved of a ainiilar cbarHe. Stephen, War between the States, ii, p. 364. 
> App., Nos. 812, 834, 835, 873, 895, 900, 908, 91 1, 931a, 941, 954, 970, 970a, 940a. 

* App., No. 873. See ante, para. 106, 107. Chittenden, Debates and Proceedings of the 
Peace Convention; McPherson, History of the Rebellion, pp. 67-70. Twenty-two States 
appointed commissioners, bnt several did not attend. Foster, Commentary on Constitu- 
tion, I, p. 173. 

* App., Nos. 917. 

* App., No. 892. 

* App., NoH. 972, 976, 1039a, 1115. The latter by Senator Lane of Kansas, for the Commit- 
tee on the Judiciary to inquire into the expediency of calling a convention. The framers 
of the Confederate constitution, evidently profiting by the experience of the pSAt, deter- 
mined to make it easier to assemble a convention to amend. Provision was made that upon 
the demand of any three States legally assembled in their several conventions, the congress 
shall summon a convention of all the States to take into consideration such amendments 
as the said States shall concur in suggesting at the time when the said demand is made; 
the same to be submitted to the States for ratification, if agreed on by said convention, 
voting by States. Article v, of Confederate constitution. McPherson, History of the 
Kebellion, p. 99. 

^ App., No. 976, submitted in 1862, called for a convention to meet in Louisville, Ky., 
on the first Monday in April, 1863, to take into consideration the condition of the United 
States and the proper means for the restoration of the Union. Each State to send as 
many delegates as it is entitled to Senators and Kepresentatives in Congress. App., No. 
1039a (1864), called for a convention for a similar purpo.se, and for the vindication of the 
Constitution, and the construction of additional and adequate guaranties of the righta 
and liberties of the people. He prcHcntod a series of propositions as the basis of a last- 
ing settlement of all difficulties. See ante, par. 103. 



284 AMERICAN HISTORICAL ASSOCIATION. 

Senator Ingalls, in 1876, in consequence of the disputed 
Presidential election in that year, introduced a resolution 
recommending the legislatures of the States to apply to Con- 
gress to call a convention to revise and amend the Constitution.^ 
This resolution made full provision for the holding of the con- 
vention, and for the submission of the revised draft of the 
Constitution to a convention in each State, chosen by the people 
thereof.'^ In 1884 an attempt was made to create a commission 
to call a convention,^ and as recently as 1886 a minority report 
of the Committee on Election of President and Vice-President 
suggested the recommendation of such a convention, owing tx) 
*'the imperative necessity of a substantial change in the 
organic law,'' and the failure of Congress to give due consid- 
eration thereto.* 

178. PROPOSED AMENDMENTS IN CONGRESS-PROCEDUHE. 

A brief examination of the reception and procedure upon 
proposed amendments in Congress will suffice to «how how 
very little chance ther^ is of such a proposition being brought 
to a vote in the branch of Congress in which it is introduced. 
Almost invariably a proposition to amend is in the form of a 
joint resolution, although there have been a very few bills 
introduced providing for amendments to the Constitution.^ 

In general, upon the introduction of a resolution proposing 
an amendment, it is customary, after it has been read twice, to 
refer it to some committee, usually to the Committee on the 



> App., No. 1429. 

' This mailo pruvision for a convention composed of aa many delegates from each State 
as it is entitled to SeuatorA and Keprcsentatlvos in Congress. Two to be chosen by the 
legislature in each State, the others in the Congrt^ssional districts, but no person holding 
any office of profit or honor under any State or the United States to be eligible as a dele- 
gate. The convention should assemble at Colnmbus, Ohio, May 2, 1877, the Chief 
Justice of the Supreme Court of the United States to be the presiding officer. Said con- 
vention should revise the Constitution and report " such alterations and amendments in 
the nature of an entire instrument," which should be reported to the Prt^sident of the 
United States, who should immediately submit the same to a convention of delegates 
r.hosen in each State by the people thereof, nnder recommendation of the legislature, for 
their assent and ratification. 

* App., No. 1631. This resolution, after reciting the failure of Congress to recommend 
needed amendments, provided for the appointment of a commission of seventy-six per- 
sons by the President, composed of two persons from each State from difi'orent political 
parties, for the i)urpose of considering and proposing to tho States the propriety of the 
legislatures of at least two-thirds of tlie States uniting in calling a convention on the 4th 
of July, 1887, for tho purpose of pniposing amendments to the Constitution. 

* App., No. 1660. House Rep., No. 2493, Forty-ninth Congress, first session, p. 5. See 
ante, par. 35. 

* Manual and Digest of the Rules and Practice of the House of Representatives, Fifty- 
third Congress, second session, pp. 404-405. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 285 

Judiciary, unless there is a committee on the subject to which 
the amendment refers^ thus in recent years the amendments 
in regard to the election of President and Vice-President have 
been referred in the House to the Committee on Election of 
President and Vice-President. In case the proposition is 
favored by a considerable number of members, who are par- 
ticularly zealous in urging it, sometimes it is possible to secure 
the appointment of a select committee to which it is referred. 
All the most important propositions, like those now a part of 
the Constitution, were so referred. 

Of thcf more than eighteen hundred propositions to amend 
the Constitution, introduced in Congress during the first cen- 
tury of its legislative history, over one-half have received no 
further consideration beyond their reception and reference to a 
committee. The remainder have either been reported or re- 
ceived further discussion, but only a very small percentage of 
these have been brought to a vote. 

Only two attempts have been found which proi)osed to 
change in any way the customary method of procedure. The 
first of these was introduced in 1826, by Mr. Herrick of Maine.* 
It proposed to regulate the time for introducing amendments, 
I)rohibiting their proposal save in every tenth year.* This was 
without doubt suggested by the flood of amendments which 
came pouring into Congress at about this time, to change the 
method of electing the President, owing to the defeat of Jack- 
son in 1824. This regulation, however, failed to meet the ap- 
proval of the House and it was never called up from the table. 

The other attempt was made by Mr. Beach of ;N"ew York at 
the opening of the Forty-ninth Congress, in 1885.^ It was evi- 
dently called out by the marked increase, in recent years, of 
the number of constitutional amendments proposed, and the 
desirability of giving them more extended consideration. The 
resolution made provision for the appointment of a standing 
committee of fifteen members of the House, '*to be known as 
the Committee on Constitutional Amendments, to which shall 
be referred all resolutions and bills proposing amendments to 



^ App., Xo. 571. See ante, par. 4. • 

'''Some of the State constitntions have provisions of tlilR cliaraoter. In Pennsylvania, 
New JcrHcy, and Tennessee it ia unconstitntional to Hubinit more than one plan of amend- 
ment, in the case of the first two States daring five years, the latter six years. Borgeaud, 
Adoption and Amendment of Constitutions, p. 189. By the constitution of Vermont, 1870, 
amendments could be proposed only at intervals of ten years. 

* House Journal, Forty-ninth Congress, first session, p. 81. 



286 AMERICAN HISTORICAL ASSOCIATION. 

the Constitution." This resolution was referred to the Com- 
mittee on Eules, but was never reported.^ 

179. HATIFICATION BY CONVENTIONS. 

Several notable attempts have been made to have certain 
amendments submitted to conventions in the several States, 
instead of to State legislatures, for their ratification or rejec- 
tion.* Such propositions were made in connection with several 
of the amendments proposed in 1860 and 1861, notably in the 
case of the Crittenden amendments. The so-called *' Corwin 
amendment" of 1861, although '^proposed by Congress" to the 
legislatures of the several States for ratification, was "ratified" 
by a constitutional convention ordained by the people of the 
State of Illinois on February 14, 1862.' As the other mode of 
ratification had been prescribed by Congress, the question 
naturally arises whether this could be considered a valid rati- 
fication, although in connection with this amendment it has no 
practical significance, as only two other States ratified it,^ and 
the progress of the war placed its adoption out of the realm of 
possibility. This is the only case where a constitational con- 
vention in any State has acted upon an amendment submitted 
by Congress. 

Since that time attempts have been made by the opponents 
of the proposed amendments, then under consideration by 
Congress, to make provision for this method of ratification. 
It was suggested by them as offering a better chance for the 
defeat of the amendment in the States. When the thirteenth 
amendment was about to be submitted to the States this 
method of ratification was proposed.* The true reason for 
the introduction of this resolution was soon shown to be an 
effort to accomplish its defeat, for the speech of its author, 
Mr. Pendleton of Ohio, instead of being an argument in favor 
of the ratification by conventions, consisted simply of a state- 
ment of his reasons for thinking the time inauspicious for 
changing the Constitution, the country being engaged in a 
civil war. The resolution was rejected by a decisive vote. 



1 stated by W. A, Muller, a member of the Ilistorical Semiuary in American History. 
Harvard, 1891, from bU work on the Committee SyHtem. 

* Original form of amendment provided for ratitication by conventions only. Elliot, v, 
pp. 123, 381. 

* Certified copy in Bureau of Rolls and Library, Stat« Department. 

* Ohio and Maryland. See par. 107. 
«App.,Ko.l023. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 287 

A similar attempt was made iu vain by Senator Dixon of 
Connecticut, when the fifteenth amendment was under consid- 
eration.* His objections seemed directed against the unequal 
system of representation in the Connecticut legislature. He 
therefore urged his plan when the House suffrage amendment 
was before the Senate, and he also presented it as an amend- 
ment to the resolution which later became the fifteenth amend- 
ment. Congress had power, he said, if it ordered the ratifica- 
tion of the amendment to be by conventions, to declare that " the 
convention should be cliosen in such a manner that it should 
represent the people." He further maintained that this was a 
question upon which the people had never had an opportunity 
to canvass or to express their opinion, therefore the body called 
upon to ratify it should be chosen subsequently to its submis- 
sion. The previous amendments which were submitted to the 
State legislatures for ratification, especially the first twelve, 
did not relate to the States at all, but simply curtailed the 
powers of Congress. Now the proposition is to provide that 
a power which has always heretofore been held by the States 
as their own power and their own right shall be taken from 
them. It is therefore proper that the people should have an 
opportunity of making known their will in regard to the pro- 
posed change.^ He was answered by his colleague, Senator 
Ferry, who declared that the question had been discussed 
before the people, and he further asserted that the same reason 
that prevented this mode of ratification from being adopted in 
the previous cases was pertinent now. Congress and the peo- 
ple have never used that power of submission to convention, 
because the machinery of conventions was dilatory, expensive, 
and unwise. The Constitution has provided for the speediest 
correction by the submission of an amendment to the legisla- 
tures. The delays incident to the assembling of a convention 
may be so many that it may be years before the evil can be 
removed which the amendment was proposed to remedy.^ 

180. KEGULATION OF THE RATIFICATION BY LEGISLATURES. 

Several attempts have been made in Congress to specify 
that a proposed amendment should be brought before legisla- 



> Api).,Nos. 1268, 1280. 

' Globe, Fortieth Congre-ss, third seHsiou, i)p. 828, 855, 1040. Seo x»08t, par. 180. 

»lbid. 



288 AMERICAN HISTORICAL ASSOCIATION. 

tares hereafter elected for ratification.* On May 23, 1866, 
when the fourteenth article wa« under consideration in the 
Senate, a resolution providiug that this amendment should be 
submitted to legislatures which shall be chosen, or the mem- 
bers of the most popular branch which shall be chosen next 
after the submission of the amendment, and at its first session, 
was presented by Mr. Buckalew of Pennsylvania.^ 

The resolution further stipulated that no acceptance or rejec- 
tion shall be reconsidered or again brouglit in question at any 
subsequent session; nor shall any iicceptance of the amend- 
ment be valid if made three years from the passage of this 
resolution. This last clause was doubtless suggested by the 
recent action of New Jersey in regard to the thirteenth amend- 
ment. That amendment had been rejected by the legislature of 
that State, December 1, 1865, and notice of its action had been 
duly sent to the United States Secretary of State. When that 
officer proclaimed the adoption of the amendmen t by the ratifica- 
tion of twenty-seven States on the 18th of December, 1865, no 
mention was made of New Jersey. However, on January 23, 
1866, the legislature of New Jersey reconsidered its previous 
action and approved the amendment.^ When the fifteenth 
amendment was before Congress, the Democrats made asystem- 
atic attempt to render its success doubtful by endeavoring to se- 
cure its submission to the States for ratification by some untried 
method. Propositions similar to the one previously presented 
by Mr. Buckalew were now submitted by several of the Senators, 
and gave rise to an extended discussion.^ The argument in favor 
of the measure, as presented by the various Democratic speak- 
ers,^ was based on the ground that the question ought to come 



* The form of propoanl adopted in 1789 has usually been observed in the resolutions pro- 
posing amendments. It is as follows : " Kesolve<l by the Senate and House of Kepresent- 
atives of the United States of America in Conj^ress assembled. That the following 
articles bo proposed as amendments to the Constitution of the United States, which, when 
ratified by three-fourths of the Stat« legislatures, shall become valid to all intents and 
purposes as a part of the same." Sometimes, a little variation in the language, as in No. 
931, the "Corwin amendment," or No. 1057, the latter as follows: "Kesolved by the House 
of Representatives (the Senate concurring), that the following amendment to tlie Cunsti- 
t ution of the United States, be, and the same hereby is, proposed to the legislatunis of the 
several States for ratification. Another, devised during the reconstruction i)eriocl as No. 
1196 (1867), reads: ''Be it resolved, etc., that upon the ratificarion of this amendment by 
three-fourths of the States represented in Congn'ss," etc. 

* App., No. 1154. 

■Jameson's Constitutional Conventions, p. G24. 

* App.. Nos. 1263, 1297, 1298, 1302. 

< Senators Davis, Hendricks, Saulsbury, Dixon, and Bayard. Globe, Fortieth Congress, 
third session, pp. 1309-1314. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 289 

directly before the people in the election of their representa- 
tives; that it was unfair to submit the amendment to the leg- 
islatures now in session, for they had not been chosen with a 
view to the question or the principles involved in the amend- 
ment. In truth, the issue had not been raised in the late cam- 
paign, for the Eepublican party had declared in their platform 
that '^ the question of suffrage in all the loyal States properly 
belongs to the people of those States.''^ Indeed, in some of 
the States, namely, Ohio, Kansas, Michigan, and Connecticut, 
the question of universal suffrage had been submitted to a 
popular vote and by large mojorities had been condemned. 
Mr. Buckalew made the best constitutional argument in sup- 
port of the measure.^ He claimed, first, that by necessary im- 
plication Congress had the power to make such regulations; 
secondly, that it is wise and expedient to adopt some general 
rule by which there shall be equal, fair, uniform, and timely 
action in the several States; thirdly, that the plan proposed 
would give all the advantages of a convention system without 
its disadvantages of inconvenience and expense, for it would 
give the people of every State a full and complete opportunity 
of passing upon the amendment; fourthly, that this plan, by 
designating the legislature which shall act upon the amend- 
ment, removes all x>ossibility of question as to what particular 
legislature or legislatures are to act upon it, or as to the length 
of the time the amendment is open Tor ratification.^ The diffi- 
culty of having amendments ratified and then having the 
ratification rescinded, or having an amendment rejected and 
afterwards ratified by the legislature of the same State, both 
of which events had occurred in the case of the recent amend- 
ments in several of the States, would be avoided.* The Ee- 
publicans took up the defense of the customary method. 
Mr. Morton led the discussion for his party.* He held that 
such a proposition was in violation of the Constitution, for it 
proposed to select a legislature in the future to which this 
amendment is to be submitted. What legislature does the 

^MoPhereon, History of the Seconstmction, p. 364. 

» Globe, pp. 1311-1313. 

3 lu 1873 the senate of Ohio passed a vote ratifying the amendment on the compensation 
of members of Congress, proposed by Congress in 1789, which had failed. Jameson, 
p. 635. 

^Jameson, pp. 627, 628, 631; Manual and Digest, Fifty -first Congress, second session, 
pp. 37-40, Story, vol. 2, pp. 649, note 1. 

•Globe, pp. 1313. 

H. Doc. 353, pt 2 19 



290 AMERICAN HISTORICAL ASSOCIATION. 

provision in the Constitution refer to! Obviously those in 
existence at the time the amendment is submitted. If they fail 
to act upon it, it is possible that future legislatures may, but 
Confess has no right to withdraw the power from the exist- 
ing legislature and say that the legislature in existence in 
1869 shall not act upon it, but that those of 1870 or 1872 may 
act. Others based their argument upon precedent.' It was 
declared that the fourteen ameodmeuts then a part of the Con- 
stitution had been submitted in every instance to legislatures, 
and, without exception, an examination of the record shows 
that a majority of the legislatures had been chosen before the 
proposed auiendment was sent out to the people. Naturally, 
these attempts all met with failure, receiving only Democratic 
support. Mr. Buckalew's resolution on division received 13 
yeas to 43 nays.* 

In the same year that the fifteenth amendment passed the 
new constitution of Tennessee was adopted. It contained a 
provision that no amendment to the Constitution of the United 
States may be ratified by any convention or assembly of the 
State which was not elected after such amendment was sub- 
mitted.' It may be an open question whether any such restric- 
tion imposed by a State constitution is valid, but Tennessee is 
the only State which has made such a provision, and there has, 
of course, been no opportunity to test its constitutionality. Mr. 
Buckalew's proposition was revived in 1882 by Mr. Berry of 
California, who, to obviate the question of constitutionality 
raised by Mr. Morton, proposed it as a formal amendment to 
the Constitution.* 

The other method of proposal by Congress and ratification 
by the State legislatures has been adopted in the case of all 
the amendments which now form a part of the Constitution. 
The preference for this form is doubtless due to its manifest 
advantage, inasmuch as the bodies called upon to act are always 
in existence, and if not in session can be quickly summoned. 

It would seem desirable, owing to the complications that may 
arise, that Congress should adopt a series of regulations govern- 
ing the procedure to be followed by the legislatures m acting 
upon an amendment submitted to them for ratification. Mr. 



' Mr. Ferry of Connecticut. 

>Mr. Blaine, although he voted for the amendment, admitted afterwards that the point 
raised b}' tlie o])iio8ition was well taken. Twenty years in Congress, Vol. ii, pp. 413, 4U. 
* Constitution of 1870, art. 2, sec. 32. 
^App.,lfo. 1550. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 291 

Mortonof Indiau a, recognizing this, proposed, in thenext Con- 
gress following the discussion already referred to, a resolution 
prescribing the rules to be followed on such occasions. This 
resolution waswithout doubt directly suggested by the recent 
struggle in the legislatureof Indiana, where the Democrats by 
sharp parliamentary tactics attempted to prevent the ratifica- 
tion of the fifteenth amendment.^ It provided that on the sixth 
legislative day of the session of any State legislature,each house 
should proceed, at noon, ta tlie consideration of any amend- 
ment which may have been submitted by Congress to the legis- 
latures of the States for ratification, "Provided, that such 
amendment may not have been acted upon at any preceding 
session of said legislature." If the amendment " shall receive 
the vote of a majority of the members elected to each house 
  • it shall be held to be duly ratified by such legislature."^ 
A similar resolution was introduced in the House a few days 
later by a Eepresentative from the same State as Mr. Morton, 
but no important action was taken by either House upon this 
subject.^ 

The question how long an amendment is open to adoption 
or rejection by the States is raised by the action of the senate of 
Ohio, in 1873, which, "acting upon the theory that once pro- 
X)osed, an amendment to the Constitution is always open to 
ratification,"* passed, at the time of the popular disapi)roval 
with the passage by Congress of the so-called * 'salary-grab act," ' 
a resolution ratifying the amendment proposed by the First 
Congress, in 1789, in regard to the compensation of members 
of Congress.^ This am^dment had failed at the time to 



> The Democratic Senators tri6<l to break a quorum, but were prevented by locked 
doom. In the Houhc of Reprenentatives all the Democrats save ten resigned, thus reduc- 
ing the membership to less than two-thirds of the members electe<i, in the hope of pre- 
venting or invalidating the action of that l)ody. The Siieaker, however, ruled that the 
House was competent to proceed, and two-thirds of the members i)re8ent voted to ratify 
the amendment. The question as to its validity was raised in Congress. McPhcrsoUf 
History of Reconstruction, pp. 490-91, note ; Foster, Com. on the Const., p. 329, note 24. 

'A pp., No. 1321. The resolution further prescribed that in oa.se final action was not 
taken on the first day, the houses should meet the next day at the same hour, and so con- 
tinue to meet from day to day unt il final action was tjikcn upon such amendment. "Nor 
was theaction of the legislature to be hindered or prevented by resignation or withdrawal, 
or the refusal to qualify, of a minority of either or both houses." The second section mnde 
jirovisioii for the certified copies of the action of each hou.te to be forwarded by the gov- 
ernor to the PreMident. Two other resolutions were introduced by Mr. Bromwell nf Illi- 
nois, "declaratory of the law and right of amending the Constitution." The text it has 
been impossible to find. App., Nos. 1113, 1211. 

•App., No. 1323. 

^Jameson, Constitutional Convention, p. G35. 

» See ante, par. 13. 

* App., No. 243. Ante, par. 13. 



292 AMERICAN HISTORICAL ASSOCIATION. 

receive the necessary uumber of votes to secure its incorpora- 
tion into the Goustitation. In commenting upon this action 
of the Ohio senate, Judge Jameson urges the desirability of 
the passage of ^' a constitutional statute of limitation, prescrib- 
ing the time within which proposed amendments shall be 
adopted or be treated," in order that "the danger of confusion 
or conflict" may be avoided.' 

181. PROPOSITIONS TO CHANGE THE MAJORITIES REQUIRED BY 

ARTICLE V. 

In view of the diflQculty with which an amendment is se- 
cured, as has been shown in the previous pages, it is some- 
what surprising that there has not been more effort to change 
the method of amendment. The first proposal of this charac- 
ter was made by the convention in Ehode Island at the time 
it ratified the Constitution, May 29, 1790.^ Ehode Island 
had remained outside of the Union until practically forced to 
come in, owing to the jealousy of their State's rights, and she 
now proposed, as a further guaranty to the rights of the 
State, to make it more difficult to secure an amendment. The 
stipulation was that after the year 1793 no amendment to 
the Constitution should' be made "without the consent of 
eleven of the States heretofore united under the Confedera- 
tion.'' Possibly also the admission of new States was kept in 
mind, and this article was designed to insure the prei)onder- 
ance of the original thirteen, even after they should be out- 
numbered. 

On the other hand, two propositions have been made looking 
to a reduction both in the majority of the vote required 
or proposed and in the number necessary to ratify. The 
first, introduced by Senator Henderson of Missouri, on the 
11th of January, 1864, in connection with the resolution for 
the abolition of slavery, which, as amended ultimately, was 
incorporated into the Constitution as the thirteenth amend- 
ment, was an article proposing a reduction of the majorities 
required for the proposal and ratification of amendments.^ 

1 Jameson, pp. 635-636. He raises the qnestion, by what minority shall the resnrrected 
amendmeut be adopted, by three-fonrths of the States then in the Union, or what num> 
ber? Another reason why a statute of limitation shoald be passed is suggested by the 
motion of Senator Anthony, in 1864, to repeal the joint resolution of the Thirty-sixth 
Congress (1861) submitting the so-called "Corwin amendment" to the States. (App., 
No. 1025). Jameson mam tains that Congress does not possess the power to recall an 
amendment which has once been submittod. Constitutional Convention, p. 634. See 
ante, par. 107. 

*App.,No. 107. 

•App., Ko. 984. 



t>ftOP08ED AMENDMENTS TO THE CONSTITUTION. 293 

This article provided that whenever a majority of the members 
elected to each House, or a convention called on the applica- 
tion of the legislatures of a majority of the several States, 
should propose amendments,^ these in either case should be 
valid when ratified by the legislatures of or conventions in two- 
thirds of the several States, as Congress should direct.^ The 
committee reported a substitute for Mr. Henderson's abolition 
amendment, but made no mention of his proposition to change 
the method of amendment, and there is no record that Mr. 
Henderson advanced any argument in favor .of the change. 
The other resolution, submitted by Mr. Porter of Virginia, in 
1873, proposed a more radical change in the method of the 
amendment than the one just discussed, and suggested a sys- 
tem the characteristics of which were more national than 
federal. It provided that *' Congress, whenever three- fifths of 
both Houses of Congress deem it necessary, may propose 
amendments to the Constitution, or may call a convention for 
proposing amendments and revising the Constitution," and 
shall be required to call such a convention ^'on the application 
of the legislatures of any number of States, embracing three- 
fifths of the enumerated population of the several States.'' 
Amendments proposed by either of these methods were to be 
valid "when approved and ratified by a majority of the elect- 
ors in the several States voting thereon, and qualified to vote for 
Eepresentatives in Congress."' It will be seen that this pro- 
posed a system analogous to that adopted by many of the 
States for amending their constitutions. 

182. RATIFICATION BY POPIJLAE VOTB. 

For seventy years after the propositions of the Rhode Island 
convention, no further suggestion was made for altering the 
method of amending the Constitution. In the session of 
1860-61 there were five proposals to take the sense of the peo- 
ple on certain amendments.* This novel proposition was first 
made by Senator Crittenden, who admitted that the reason for 
suggesting this unusual method was because of his fear that 



1 As waH the prevailing provision in the State constitutions. 

' The method of ratification of amendment provided for hy article Y of the constitn- 
tion of the Confederate States, also fixed upon ".the legislatures of two-thirds of the sev- 
eral States, or hy conventions in two-thirds thereof, as the one or the other mode of 
ratitioatiou may be proposed by the general convention." McPherson, History of the 
Bebellion, p. 09. 

 App., No. 1364. 

* App., Nob. 852, 861, 874, 804, 900. A method provided in most of the State constitutions. 
In Delaware alone the people have no direct voice. 



294 AMERICAN HISTORICAL ASSOCIATION. 

a two- thirds majority of the two Houses of Congress could not 
be secured to recommend his constitutional amendments to the 
States.* This proposition was warmly seconded by Douglas.* 

Even if the people had expressed their indorsement of a 
certain proposition by an overwhelming majority, this would 
not legally have secured the amendment, but would have been, 
so to speak, a plebiscite on' the question, and simply made 
known to Congress the temper of the people at large.^ This 
undoubtedly would have great weight in influencing the action 
of Congress and the other constitutional bodies to which an 
amendment might be submitted for ratification. 

Another form of the same desire to consult the people is 
seen in a proposed amendment to the fifteenth amendment, sug- 
gested in 1869 by Mr. Davis of Kentucky.* It provided that 
this and all future amendments should be submitted to the vote 
of the people of each State; a majority of the people entitled 
to vote in three-fourths of the several States should be neces- 
sary for its ratification. 

In support of his resolution. Senator Davis asserted that ^< it 
was unseemly, not in accord with the principles and anal- 
ogies of our system of government, and unsafe in practice to 
submit amendments either to legislatures or conventions," but 
the safest method, the one most in accord with the principles of 
our Government, " is to submit a proposition which can not be 
changed, nor modified nor altered, to the sovereign people 
themselves."^ As it would plainly be unconstitutional to 
apply this method of ratification to the fifteenth amendment 
before Article v of the Constitution had been changed, this 
resolution failed to receive the support of the members of Mr. 
Davis's own party. 

1 Globe, p. 264. 

* Globe, App., p. 38, et neq. See Rhodes, vol. iii, pp. 254, 200, 265, with notes, who mniii tains 
that if the mea.sure had been adopted, the Crittenden compromise ''wonld have carried 
the Northern States by n great migurity," and its results would have been " to impel a 
majority of the Republican Senators and Representatives to give it their support." The 
preambleof a similar resolution, submitted by Mr. Cocbranoiii the House (No. 874a), recited 
the same facts and declared whereas it is a cardinal principle of our representative sys- 
tem that the representatives shall obey the will of the people, it is deemed proper and 
necessary to ask the opinion and judgment of the i)eople of the several States in the pro- 
posed amendments to the Constitution, etc. 

» For the Swiss Referendum, see Hart's Federal Government, par. 1^, to some extent 
adopted In some of the States. The legislature of California, in November. 1892, called 
for a popular vote on the question of choosing United States Senators by popular vote. 
The people voting in favor, the legislature passwl resolutions favoring the " plan to be 
presented to Congress . ' ' InHnence of State action h ere seen. See Bryce, l, chap. 39. E. P. 
Oberholtzer, The Referendum in America. Also Bryce, I, p. 101, note 1. 

* App., No. 1288. 
< Globe, p. 674. 



PfiOl>OSED AMENDMENTS TO THE CONSTITUTION. 295 

183. WHAT CONSTITUTES THE TWO-THIRDS MAJORITY REQUIRED BY 

ARTICLE V? 

The question as to wbat constitutes the " two-thirds of both 
Houses," required by Article v for the recommendation of an 
amendment to the Constitution by Congress, was first raised 
at the time* of the action of Congress submitting the twelfth 
amendment to the States. This amendment was passed by a 
two-thirds vote of the members of each House present, but 
not by a two-thirds majority of all the members of the Senate 
and House, respectively.* The Federalists therefore claimed 
that the constitutional majority had not been obtained. In 
reply to this the friends of the amendment appealed to prece- 
dent, showing that some of the most important of the first 
ten amendments had been passed by a two-thirds vote of the 
members of the House present.^ This failed to silence the 
Federalists, and the legislatures of the three Federal States 
of Massachusetts, Connecticut, and Delaware, in their resolu- 
tions rejecting the amendment, reiterated the charge of uncon- 
stitutionality. The question does not seem to have been raised 
again until 1861, when it came up in connection with the vote 
of the Senate on the so-called *' Corwin amendment." ^ It was 
held by the Chair that two-thirds of those present was the 
constitutional requirement, and in this opinion he was sus- 
tained by the Senate. This ruling does not seem to have been 
questioned since.* 

184, IS THE SIGNATURE OF THE PREvSIDENT ESSENTIAL TO CONSTITU- 

TIONAL AMENDMENTS? 

This question was first raised in the case of Hollingsworth v. 
The Stat>e of Virginia,"* in which case the validity of the elev- 
enth amendment was called in question, in that it appeared 
that the " amendment was never submitted to the President 
for his approbation." The court, however, unanimously held 
that the amendment had been constitutionally adopted, and 
Mr. Justice Chase, in his opinion, declared that the President 
" has nothing to do with the proposition or adoption of amend- 
ments to the Constitution." The question, however, has since 
been several times the subject of discussion in Congress. The 



' See ante, par. 38. 

» Randolph's speech, Annals of Congress, Eighth Congress, firHt session, pp. 632-633. 
See Journal of the House of Representatives for August 21, 1789, and Journal of Senate, 
September 9, 1789. 

• App., No. 931. For similar ruling in connection with the passage of bills over the veto, 
see Mason's V«to Power, p. 119. 

* See speech by Mr. Ashley, January 6, 1865, Globe, p. 138. 
«3DaUiM,378. 



296 AMERICAN HISTORICAL ASSOCIATION. ^ 

first time, in 1803, when the amendment in regard to the elec- 
tion of President and Vice-President, which later became the 
twelfth amendment, was under consideration. A. motion in 
the Senate to submit the amendment to the President for ap- 
proval was rejected by the decisive vote of 7 to 23.* In 1861 
President Buchanan signed the proposed amendment pro- 
hibiting Congress from interfering with slavery in the States. 
This act failed to call out any protest or objection. 

When the thirteenth amendment had been passed by Con- 
gress, it was inadvertently submitted to the President and he 
signed it and notified Congress to that effect.' The Senate, on 
the motion of Senator Trumbull, immediately passed a resolu- 
tion "that such approval was unnecessary to give effect to the 
action of Congress in proposing said amendment,   • 
and shall not constitute a precedent for the future." This 
opinion of the Senate coincides with the decision of the court, 
and was in harmony with the practice in the case of all the 
amendments proposed — with the single exceptions noted — and 
is based on sound common sense.^ President Johnson acted 
in accordance with this view in 1866 in the case of the four- 
teenth amendment. In a midssage to Congress, he informed 
that body that in submitting the amendment to the States for 
ratification, his action, and that of the Secretary of State, were 
"purely ministerial and in no sense whatev^ committing the 
Executive to an approval or a recommendation of the amend- 
ment to the State legislatures or to the people."* 

John Quincy Adams even questioned the propriety of the 
President recommending amendments to Congress, inasmuch 
as the Constitution gives him no share in framing them. In 
1817, when Secretary of Stata, he opposed President Monroe's 
intention to propose an amendment on internal improvements 
partially because of this reason.' Later, while President, he 
refused to recommend an amendment in regard to the election 
of President for similar reasons.* The m^iority of the Presi- 
dents, both before and since, have not shared his scruples. 

» App.,No.358. 

*Cong. Globe, Thirty-eighth Congress, second session, p. 588. 

*See discussion of this in Jameson, Constitutional Convention, pars. 55d-560; Mason, 
Veto Power, par. 106. 

* Message of June 22, 1866. In this message he allnded to " the fact that the Joint reso- 
lution was not submitted by the two Houses to the approval of the President, and that 
of the thirty-six States which constitute the Union, eleven are excluded from representa- 
tion in either House of Congress." Ho waived the question of "its constitutional valid- 
ity," as well as of "the merits of the article." Wilson, Slave Power, ill, p. 059. 

■Memoirs, iv, pp. 463-464. 

•Ibid., VII, p. 302. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 297 

185. IS THE SIGNATURE OF THE GOVERNOR ESSENTIAL TO AN AMEND- 
MENT TO THE FEDERAL CONSTITUTION APPROVED BY THE LEGISLA- 
TURE OF THE STATE? 

There has been a great lack of nniformity in the actual prac- 
tice by the governors of the States in this resi)ect. This lack 
of uniformity can be observed in the action of the States upon 
the various amendments submitted to them. In the case of 
the thirteenth amendment, for example, the act of ratification 
of the legislature of Massachusetts was approved by the gov- 
ernor, while the signature of the governor of Pennsylvania does 
not appear upon the certified copy of the similar act of the 
legislature of that State, although the executives of both States 
possessed the veto i)ower.^ 

That this question might become an imi>ortant one, is shown 
by the action of the governor of Kew Hampshire in vetoing the 
resolutions of the legislature of that State ratifying the twelfth 
amendment.' As tlie vote of the State was not needed to make 
up the three-fourths vote required for the ratification of the 
amendment, the question does not seem to have come up for judi- 
cial determination, it is believed that the framers of the Consti- 
tution did not anticipate that the chief executives of the States 
would participate with the legislative bodies in the approval or 
disapproval of amendments submitted, for at the time the Con- 
stitution was framed but one of the States conferred upon the 
governor the veto power.^ Moreover, the language of the Con- 
stitution is that the amendment shall be valid ''when ratified 
by the legislatures of three-fourths of the States.^ Although 
at the present time in all but four of the States^ the governor 
possesses the veto power, and to that extent is a part of the 
lawmaking power, is it not well to bear in mind that the lan- 
guage of the Federal Constitution is not that amendments shall 
be valid "when ratified by the lawmaking power of three- 
fourths of the States." Governor Bramlette of Kentucky 
seems to have adopted the view that his duties were merely 
ministerial, at the time the resolutions of the legislature of 
that State rejecting the thirteenth amendment were presented 
to him for approval. Although he regretted the action of the 



1 Bulletin of the Burean of Rolls and Library of the Department of State, No. 7, pp. 538, 
547. The 8ume lack of nniformity appears also in the case of resolutions passed by the 
legislatures of the States, projiosiug amendments to the Federal Constitution. In some 
cases thoy are signed by the governor of the State; in otiiers he simply transmits them 
as requested by the legislatare. 

*McMaster, History of the United States, m, p. 787. 

 Massachusetts. See Mason's Veto Power, par. 8. 

4 Rhode Island, Ohio, Delaware, and North Carolina. 



298 AMERICAN HISTORICAL ASSOCIATION^. 

legislature, be declined to return the resolutions with his dis- 
sent '*on the ground that the action of the legislature was 
complete without his approval.^ ^ 

Is not the legislature, when passing upon an amendment to 
the Federal Constitution, acting in the capacity of a conven- 
tion rather than exercising its ordinary legislative powers? If 
this be true, why should the governor have anything more 
than a ministerial function to perform? The most reasonable 
view would seem to be that the signature of the chief executive 
of a State is no more essential to complete the action of the 
legislature upon an amendment to the Federal Constitution 
than is that of the President of the United States to complete 
the action of Congress in proposing such an amendment. 

186. WHAT CONSTITUTES THREE-FOURTHS OF THE STATES! 

This question first seriously arose at the time the proposi- 
tion which afterwards was adopted as the thirteenth amend- 
ment was before Congress.* At that time several of the 
States being in rebellion against the Government they were 
without representation in Congress. It was held by some that 
such States should not be counted as included in the TJnion.^ 
Thus we find amendments presented with the following enact- 
ing clause: "Be it resolved    that upon the ratifica- 
tion of this amendment by three- fourths of the States repre- 
sented in Congress it shall become valid to all intents and 
purposes as part of the Constitution."* 

The question was undecided when the thirteenth amendment 
was sent to the States. When the legislatures of twenty- 
seven States had ratified this amendment, which was exactly 
three-fourths of all the States in the Union, the Secretary of 
State issued a proclamation declaring it a part of the Consti- 
tution.*^ Of these States, however, several had been in rebellion 



* Jameson, p. 630. For discussion of tlio question 'whether the signature of the governor 
is necessary in amending a State constitution, see ibid., pars. 552, 561, 662. In such cases, 
in general, the governor does not have any opportunity to pass upon the actual amend- 
ment, but in some States the resolution of the legislature proposing an amendment for 
popular approval comes before him for his approval. Black, Const. Law, p. 47. 

*In the case of the eleventh amendment, it was for some time uncertain whether 
Tennessee should be counted, but it was finally found that twelve States had ratified 
before Tennessee had been admitted, and hence adopted by the action of twelve States. 
App., No. 321. 

'See speech of Ashley, January 6, 1865, on the thirteenth amendment, Congressional 
Globe, p. 140; Scofi('Id*s speech, January 11, ibid., p. 144; Sumner's resolution of February 
4, 1865, Congressional Globe, p. 588. 

* App., No. 1196 (in 1867). 

* December 18, 1865. See list of States ratifying, App., No. 085. 



I>J60P0SED AMENDMENTS TO THE CONSTITUTION. 299 

and had not been readmitted to representation in Congress; in 
fact, it was not nntil three years later that the majority of them 
were restored to the full enjoyment of this right. " The ques- 
tion as to whether they could give valid assent to an amend- 
ment to the Constitution was one which might possibly be 
raised." " If they could not participate in the enactment of 
statute law, how could they participate in the far weightier 
duty of framing the organic law of the Republic I ''^ In the 
case of the fourteenth and fifteenth amendments, the requisite 
majority was secured through the policy pursued by Congress 
of requiring from the States late in rebellion, as one of the 
conditions precedent to their recognition and the admission of 
their representatives in the Federal Legislature, the ratifica- 
tion of one, and in most instances of both, of these amend- 
ments. By this expedient the authoritative settlement of this 
question was rendered unnecessary.* 

187. CAN A STATE RECONSIDER ITS ACTION UPON A CONSTITUTIONAL 

AMENDMENT? 

Three States, after giving their consent to the fourteenth 
amendment,^ and one after similar action upon the fifteenth 
amendment,^ declared through resolutions passed by their leg 
islatures that they withdrew their consent. In all but one of 
these Instances this action was taken before the amendment 
had been ratified by three-fourths of the legislatures of the 
several States, and it was contended that such action could be 
taken previous to the incorporation of the amendment into 
the Constitution. The Secretary of State, in canvassing the 
votes upon the fourteenth amendment,' being in doubt how 
such cases should be regarded, issued a certificate reciting the 
facts and declaring the adoption of the amendment in case 
the ratification of the two States which had attempted to 
recall their consent was still to be considered valid.^ Congress 
immediately passed a concurrent resolution declaring the rat- 
ification of the amendment valid and sufficient,'^ and on the 

1 Blaine, i, p. 540; ii, pp. 112, 113. Foster, Com. on Const., I, p. 227. The thirteenth 
amendment "never obtained the requisite ratification," "unless the validity of this 
action by the govemmenta of the former insurgent States, organi/ied by Lincoln and 
Johnson, Is recognized." 

» Cooley, Constitutional Law, pp. 210-211. 

'Xew Jersey, Ohio, and Oregon, but the latter withdrew her consent after the adoption 
of the amendment. S«e App., Nos. 1135-1140. 

* New York. App., No. 1284. 

« Acting under the law of April 20, 1818, U. 8. Stat. L., in, p. 439. 

• July 20, 1888. TT. S. Stat. L., xv, p. 706. 
' July 21, 1888. U. S. Stat. L., xv, p. 708. 



300 AMERICA]^ HIRt'ORICAt ASSOCIATION. 

28th of July, 1868, the Secretary of State issued a second 
proclamation declaring the amendment to be a part^ of the 
Constitution.* 

On the other hand, in the case of the thirteenth amendment, 
one State, which had previously rejected the amendment, 
reconsidered its action.* Four similar cases occurred in con- 
nection with the fourteenth amendment,^ and two with the fif- 
teenth amendment,* some even subsequent to the proclamation 
declaring the adoption of the respective amendments. All 
these States, where the action had been taken previous to the 
issuing of such proclamation, were included by the Secretary 
of State in the list of States ratifying. 

From the above it would seem that practice has decided that 
a State having once given its consent the question is closed 
and it can not recall its action, but, on the other hand, that a 
State that has rejected an amendment can reconsider its action 
at any time previous to the incorporation of the amendment 
into the Constitution.* 

188. THE DIFFICULTIES OF AMENDMENT. 

In summarizing the results of the attempts to amend the 
Constitution during the first century of its history, we find 
that besides the fifteen amendments now a part of the organic 
law," only four have been proposed by Congress to the States 
for ratification.'^ Two of these, one on the apportionment of 
Eepresentatives,^ the other on titles of nobility,^ failed of adop- 
tion by only one ratification, in addition, nine have passed 
the Senate '^ and nine the House of Eepresentatives." 

The failure to secure amendments in the past does not seem 
to prevent the frequent introduction of new proposals to change 
the Constitution. In the Forty-ninth Congress there were no 



>Ibid. 

» New Jersey. 

'North Carolina, South Carolina, Georgia, and Virginia. 

* Ohio, New Jerney. Pennsylvania reconnidered its action rofasing to ratify the amend- 
ment in regard to the apportionment of lieprt'HentativeH, the first of the twelve submitted 
by Congress in 1789. Her first action was taken March 10, 1790. Senate Journal, First 
Congress, second session, p. 39. Her action in ratification of this amendment October 26, 
1791. Senate Journal, Second Congress, first session, p. 11. See App., No. 205. 

^For full discussion, see Jameson, Constitutional Convention, pars. 576-584; also, 
Cooley, Constitutional Law, pp. 211, 212, with notes. 

* These constitute but four groups in point of time and purpose. 
'App., Xos. 243, 295, 399, 931. 

 App., No. 295, ante, par. 22. 

•App., No. 399, ante, par. 99. 

">App., Nos.409, 485-486, 489-490, 505-506. 535, 545, 1308, 1676, 1691. 

»» App., N08.228, 230, 345, 359, 1055, 1079, 1250. 1401, 1477. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 301 

less than fifty-fonr reaolations, and in the Fiftieth Congress 
forty-eight, to amend the Constitution.^ 

In the light of the history of the different movements to 
secure amendments, we cannot believe that the expectation of 
the framers of the Constitution has been fulfilled.^ Nothing 
of strength has been added to the Constitution by amendment 
except in the case of the ^^ reconstruction amendments," and 
these were carried only after a civil war.^ 

Why, it may be asked, have so few of the more than eighteen 
hundred propositions looking to the amendment of our funda- 
mental law been successful? In part because some were sug- 
gested as cures for temporary evils, others were trivial or 
impracticable, still others found a place in that unwritten 
constitution which has grown up side by side with the written 
document, and whose provisions are often as effective as those 
contained in the organic law;^ but the real reason for the 
failure of those other amendments which have, been called for 
repeatedly by the general public has been due to the insur- 
mountable constitutional obstacles in their way.* " It would 



> In the Fifty-aecond Confess even more— 64 in the fint seasion and 9 in the second 
session ; 73 iu all. 

* Speech of Iredell in North Carolina convention, July 29, 1788: " The constitution of 
any government which can not be regularly amended when its defects are experienced 
redaces the people to this dilemma: They must either submit to its oppression or bring 
about amendments more or less by a civil war. The Constitution before us can be altered 
with as much regularity and as little confasion as any act of assembly— not, indeed, quite 
so easy, which would be extremely impolitic, but it is a most happy circumstance that 
there is a remedy in the system itself for its own fallibility, so that alterations can with- 
out difficnlty be made, agreeable to the general sense of the people." Elliot, iv, pp. 176, 
177. The exi>erience of the first few years confirmed this view. In an article in the 
American Kegirit«r for 1809, p. 8, discussing the question of amendments, is the follow- 
ing : " There is little doubt that in the lapse of a few generations the Constitution of the 
United States will undergo a total but gradual change." 

*"The sovereign of the United States has been rouse<l to action but once daring the 
coarse of ninety years. It needed the thunders of the civil war to break his repose, and 
it may be doubted whether anything short of impending revolution will ever again arouse 
him to activity. But a monarch who slumbers for years is like a monarch who does not 
exist. A federal constitution is capable of change, but for all that a federal constitu- 
tion is apt to be unchangeable." Dicey, Law of the Constitution (4th ed.), p. 140. 

* Such changes must be sought in the statutes, in the decision of the courts, and in the 
customs and practices of the several departments of the Government. See article by 
Trof. McMasUT in Shaler's United States, ii, p. 500. " It is almost incorrect to say that 
throughout this period ' (1804-1865, during which the Constitution was not altered in 
either word or syllable) "the Constitution was anamended, for it was so expanded by 
the decisions of Morshall that they amounted to virtual amendments to its text." 
Report of a committee of the New York State Bar Association, 1890. Reports of the 
New York Bar Association, Vol. xiii, p. 140. 

s" When we consider that these legislatures in turn act through two separate assem. 
blies, each at all times suitably impressed with its own importance and independence, and 
generally jealous and suspicious of dictation from the Federal Government, we realize 
the difficulty of securing the coincidence of so many assemblies and so many minds on a 



302 AMERICAN HISTORICAL ASSOCIATION. 

seem," as a well-known American writer has truly said, *^ that 
no impulse short of the impulse of self-preservation, no force 
less than the force of revolution, can nowadays be expected to 
move the cumberous machinery in Article v." ^ 

When we contrast this paucity of amendments with the fre- 
quency of constitutional revision and change in the States, it 
is the more striking.^ Only one of the original States lives 
under its first constitution, namely, Massachusetts, and that 
instrument has been amended far more than the Federal doc- 
ument. It is doubtless true that this tendency to change has 
been in some instances carried too far, and that the constitu- 
tions of some of our States enter so much into detail that 
their provisions partake more of the nature of the statutory 
than the fundamental law.' Still many salutary changes have 
been effected, and these constitutions are, in consequence, 
much better adapted to meet the needs of the present age. 
The fact that the modern State constitutions have entered so 
largely into technique and detail render them less likely to be 
permanent and increases the necessity of amendment. This 
being true, one of the demands of the time is for greater 
facility in procuring amendments.* 

Fortunately, the Federal Constitution, owing to the fact that 
it deals only with the most general elements of government, 
has proved so elastic as to adapt itself to new contingencies 
and circumstances, and thus the necessity of amendment has 
been reduced to a minimum."^ There still remain, however, 
cei-tain desirable reforms, rendered apparent by more than a 

Bingle proposition in the exact form proposed." Ibid., p. 138. " Only five times in a cen- 
tury of constitutional government has the Constitution been changed, an immonity which 
must be attributed not only to its original completeness, but to the conservative spirit of 
the national and State leg^atures and the intrinsic difficulties attending the process." 
Ibid., p. 141. 
1 Woodrow Wilson, Congressional Grovemment, pp. 242-243. 

* The total number of distinct constitutions, either newly adopted or completely revised 
in the one hundred and ten years subsequent to the Declaration of Independence was 104, 
and to these several constitutions 214 partial amendments have been adopt4Ml. The aver- 
age life of a State constitution has been twenty-seven years. Hitchcock, American State 
Constitutions, pp. 13, 14. Davis, American Constitutions, pp. 475, 476. See also Bryco for 
later figures, 113 constitutions and 240 partial amendments. Vol. I, pp. 457, 458. See also 
ibid., chaps. 38, 39. Up to 1897 the number of partial amendments is 300. 

s Reasons for this, see Bryce, i, pp. 458-462, 490-493. Hitchcock, pp. 34-47. 

* Jameson, J. F. An Introduction to the Study of the Constitution and Political His- 
tory of the States, p. 14. 

^ " If there is any one thing to which we owe the permanency of our government, it is 
this, that 80 little is aettlod dogmatically; that so much is left for e^Fperimept." >lcMa9- 
Iter in Shaler's, United States, n, p. 50i0. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 303 

century's experience and the changed conditions of our people 
and age. Although constructive statesmanship did not end 
with the adoption of the Constitution, as some would have us 
believe,^ and although there exists to-day more wisdom and 
capacity in matters pertaining to the science of government 
than at the time the Constitution was formed, still it has 
proved to be impossible to secure these reforms because they 
can be effected only by a formal amendment.^ 

Nearly all Americans will agre« that a rigid constitution has 
its excellencies,^ but is there not a limit to the degree of rigid- 
ity desirable ? Did not the f ramers of our Federal Constitution, 
while seeking '^to avoid the dangers attending a too frequent 
change of their fundamental code,'' advert "to an opposite 
danger to be eciually shunned — that of making amendments 
too difficult!''* Has not the mode provided proved to be of 



1 At no time in the century have there failed to be present in Congress members who, out 
of regard for the memory of the ''fathers," "look at tho Constitutions," as Jefferson said, 
"with sanctimonious reverence and deem them like the ark of the covenant, too sacred to 
be touched." Two examples will suffice: Speech of Mr. Purviance of Korth Carolina, 
December 7, 1803 ; Annals, pp. 092, 693. He opposed "any innovation on the sacred charter, 
because when we shall have once begun to make incursions on it, there is no knowing at 
what point of progress we shall stop. * * * As for myself, while one fragment of this 
sacred charter remains, I will hug it to my heart and cherish it as I would the vital Juices 
of my existence. I believe that it is now absolutely i>erfect ; if it be once invaded the 
work of destruction will not be arrested until the happiness and liberties of our country 
are destroyed." Mr. English of New Jersey, in a speech January 10, 1893, said: "I 
object to all and an 3' of this tinkering with the Constitution ; the horror that is in my nature 
at any profane touch uiion the Constitution" etc. * * * "Let us pause before wo 
further amend the Constitution and lay profane hands upon it, to reflect whether or not 
wo are setting a precedent which may be evil or bring evils upon the Kepublic. Let tho 
Constitution stand. * * * Go no further if you value that inheritance which your 
fathers gave you and which their sons are bound to defend and support." Record, Fifty- 
second Congress, second session, p. 491. Such persons should read Jefferson's comment, 
(Works, VII, pp. 14, 15), and also Jackson's message, where he says, "Evils which can be 
clearly traced to an organic defect in the Constitution ought not to be overlooked througli 
a too scrupulous veneration of the work of our ancestors." Senate Journal, Twenty- 
first Congress, second session, pp. 21-22. 

* Changes which could be effected by interpretation it has been possible to secure, but 
any change affecting any provision in regard to the form of the government it has been 
impossible to secure, as for example, tho abolition of the Electoral College, the popular 
election of Senators, the lengthening the term of Hepresentatives, conferring upon tho 
President power to veto items in appropriation bills, etc. 

*Cooley, Constitutional Law, pp. 21,22. 

^Jameson, Constitutional Conventitm, p. 549. "Provisions regulating the time and 
mode of effecting organic chan&:cs are in the nature of safety valves, they must not be so 
adjusted as to discharge their peculiar function with too great facility, lest they become 
the unlinary escape pipes of party passion; nor, on tho other hand, must they discharge 
it with such ditliculty that the force needed to induce action is sufficient to explode the 
machine. Hence the problem of the constitution maker is, in this particular, one of the 
niost difficult in our whole system, to reconcile the requisites lor progress with the 
requisites for safety." Ibid. 



304 AMERICAN HISTORICAL ASSOCIATION. 

sach a character that in some instances '^discovered faults" 
have been perpetuated t ^ While continuing to follow the wise 
injunction of the "Father of the Country" "to resist with care 
the spirit of innovation upon the principles of the Constitu- 
tion," may we not do well to make such constitutional modifica- 
tions as "experience" — "the surest standard by which to test 
the real tendency of existing constitutions" — ^has shown desir- 
able?^ Certainly the facts plainly show that the cause of the 
difficulty is, to use the words of Chief Justice Marshall, that 
the machinery of procuring an amendment is "unwieldy and 
cumbrous."^ The majorities required are too large.* Under 
the present system, according to the population given in the 
census of 1890, it was possible for eleven States with a popu- 
lation of less than 2,350,000 to defeat any constitutional amend- 
ment although it was desired by the more than 60,000,000 
inhabitants of the other States.' 

"When in a democratic political society," says Professor 
Burgess, "the well matured, long and deliberately formed will 
of the undoubted majority can be persistently and successfully 
thwarted, in the amendment of its organic law, by the will of 
the minority, there is just as much danger to the State from 
revolution and violence as there is from the caprice of the 
majority, where the sovereignty of the bare majority is ac- 
knowledged."^ 



'See the Federalist, No. 43, Hamilton's ed., p. 346; Story, Constitutional Law, n, par. 
1828. 

* Washington's Farewell Address, Sparks, Writings of Washington, xii, pp. 223, 224. 

* Baron v. Baltimore, 7 Peters, 761. 

^Patriok Henry anticipated this and advanced it in the Virginia convention as one of 
his reasons for opposing the ratification of the Constitution. Elliot's Deb., in, pp. 48-50. 

* The eleven States of Delaware, Rhode Island, Vermont, Oregon, Nevada, North Dakota, 
South Dakota, Montana, Washington, Idaho, and Wyoming, with a total population of 
2,344,115, or 3.7 per cent of the total population of the United States (1890). The figures 
are equally striking if the vote instead of the population is taken. The minority report 
of the HouHe Committee on Election of President and Vice-President in 1878 showed 
that on the basis of the figures of the election of 1876 the Legislatures elected by 282,230 
voters could successfully resist a constitutional amendment desired by 8,123,559 voters, 
or more than 96 per cent. House Re])orts, Forty-fiflh Congress, second session, iv, No. 819, 
p. 18. See also Burgess, Political Science and Constitutional Law, i, pp. 150-154. 

'Burgess, I, p. 152. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 305 



ADDENDA. 

Since the pages upon the legislative department were sent 
to press six additional resolutions of State legislatures pro- 
posing amendments to the Federal Constitution have been 
found. 

Add to page 66, note 7 : The legislatures of Georgia and 
Pennsylvania passed resolutions concurring with the resolu- 
tions of the legislature of Tennessee changing the term of 
Senators to four years. App. Nos. 419ay 41%. Ten States 
passed resolutions of nonconcurrence. See also App. No. 419. 

Add to page 35, note 1 : The legislatures of Kentucky and 
Georgia in 1817 also passed resolutions proposing an amend- 
ment to prohibit Oongress from passing any bill changing the 
compensation of Members which should take effect during the 
life of the existing Congress. App. Nos. 461«, 467a. For 
resolutions of nonconcurrence from four States, see App. No. 
461a. 

Add to page 57, notes 2 and 3: The legislature of Vermont 
in 1818 and the general assembly of Illinois in 1821 passed 
resolutions recommending an amendment providing for the 
election of Representatives and Presidential electors by dis- 
tricts. App. Nos. 480a, 480i>, 5066, 506c. 

H. Doc. 353, pt. 2 20 



Appendix A. 

A CALENDAR OF AMESDMENT8 PROPOSED TO THE CONSTITUTIOX OF 
THE UNITED STATES, FROM THE DATE OF ITS RATIFICATION TO 
MARCH 4, 1889. 

The endeavor has been made to make this list of proposed 
amendments as complete as possible, and it is believed that all 
the most important resolutions have been included, but owing 
to the poor indexing of the early volumes of the journals and 
debates, it is probable that some propositions have been over- 
looked. Amendments recommended by State legislatures have 
been found in several cases not recorded in the journals. It 
is likely that there arc other such cases. The system of num- 
bering employed does not always indicate a separate resolu- 
tion, for often one resolution relates to several different sub- 
jects, hence it has been found convenient to separate an 
amendment into its distinct subjects, and number accordingly. 
Since this calendar was first compiled several additional prop- 
ositions, as well as the text of other proposed amendments, 
not given in the official records of Congress, have been found 
through the examination of the original printed resolutions on 
file in the Senate document room at Washington. Likewise 
various resolutions trom the legislatures of different States 
have been found in the Massachusetts Archives in the State- 
house, Boston, and also recorded in the journals of the senate 
and house of representatives of the Commonwealth of Pennsyl- 
vania for the earlier years of the century. Without changing 
the original numl>ers, these have been inserted in their proper 
chronological order, by making use of alphabetical suffixes, 
as 319a, 971i>, etc. 

In cases where the text of the proposed amendment is not 
given in the journals or llecord, the files of the original printed 
resoluticms, covering the last thirty-five years of the period, 
may be consulted in the Senate document room. 

EXPLANATION OF SIGNS. 

A single star (•) placed before the number of an amendment 
indicates that the resolution passed one House of Congress. 
306 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 307 

A doable star (**), both Hoases of Congress, and a triple star 
(***), that the ameiidiueut was ratified by the States. A 
number in a bracket following the number of an amendment 
signifies that the resolution was proposed as an amendment or 
a substitute to the resolution the number of which is in the 
brackets. The sign (o) before a page number indicates that on 
that page will be found the text of the prox>osed amendment. 

EXPLANATION OF ABBREVIATIONS. 

The letters S. J. and H. J. refer to the Senate and House 
journals, respectively. Annals, to the Annals of Congress; 
Globe, to the Congressional Globe; Com. indicates committee; 
H. II. and S. B. indicate House resolutions and Senate reso- 
lutions. 

In references to the journals and debates, etc., sess. stands 
for session, and Cong, for Congress. 

CALENDAR OF AMENDMENTS. 

1. 1. Division: Reservation of nondelegated ix)wers. 

3. 2. Legislative: Apportionment of Kepresentatives. 

3. 3. Legislative: Restriction on Federal control over election of Sen* 
ators and Representatives. 

4. 4. Finance: Restriction upon the levying of direct taxes. 

5. 5. Conunerce: Commercial monopolies prohibited. 

6. 6. Personal Relations: Indictment by grand jury. 

7. 7. Judiciary: Jurisdiction of Federal courtfl. 

8. 8. Personal Relations: Trial by jury in civil action. 

9. 9. Personal Relations: Titles of nobility. 

1788, Feb. 0. Proposed bv the Massacbasetts conyention at the time of the 
ratification of the Constltxitioii. Elliot's Debates, i, pp. *'32^-323. 

10. 1. Legislative: Restriction on Federal control over election of Sen- 
ators and Representatives. 

11. 2. Division: Reservation of nondelegated powers. 

12. 3. Finance: Restriction npon the levying of direct taxes. 

13. 4. Personal Relations: Oath. 

1788, May 23. Proposed by the Sonth Carolina convention at the time of 
the ratification of the Ck>n8titation. Elliot's Debates, i, p. °3S&. 

14. 1. Division: Reservation of nondelegated powers, 
lo. 2. Legislative: Apportionment of Representatives. 

IG. 3. Legislative: Restriction on Federal control over election of Sen- 
ators and Representatives. 

17. 4. Finance: Restriction npon the levying of direct taxes. 

18. 5. Commerce: Commercial monopolies prohibited. 

19. 6. Personal Relations: Indictment by g^and jary. 

20. 7. Judiciary: Jurisdiction of Federal courts. 

21. 8. Personal Relations: Trial by jury in civil cases. 

22. 9. Personal Relations: Titles of nobility. 



308 AMERICAN HISTORICAL ASSOCUTION. 

23. 10. War: Standing army in time of peace. 

24. 11. Personal Relations: Religion. 

25. 12. Personal Relations: Right to bear arms. 

1788. June 21. Proposed by the New Hampshire oonvention at the time of 
the ratification of the Constitution. Elliot's Debates, i, pp. <*325-a90. 

26. 1. Division: Reservation of non delegated powers. 

27. 2. Legislative: Apportionment of Representatives. 

28. 8. Finance: Restriction npon the levying of direct taxes. 

29. 4. Legislative: Senators and Representatives ineligible to civil office 
during term. 

30. 5. Legislative: Publication of journals annually. 
81. 6. Finance: Publication of Treasury accounts. 

32. 7. Foreign affairs: Ratification of treaties. 

33. 8. Commercial: Restriction in passage of navigation laws. 

34. 9. War: Standing army in time of peace. 

35. 10. War: Period of enlistment of soldiers limited. 

36. 11. War: Regulation of the militia. 

37. 12. Territorial: Restriction on the i)owers of Congress over the Fed- 
eral town. 

38. 18. Executive: Limitation upon eligibility of President. 

39. 14. Judiciary: Jurisdiction of Federal courts. 

40. 15. Personal Relations: Rights of defendant in criminal trials. 

41. 16. Legislative: Restriction on Federal control over the election of 
Senators and Representatives. 

42. 17. Personal Relations: Rights reserved. 

43. 18. Legislative: To regulate the alteration of the compensation of 
Senators and Representatives. 

44. 19. Legislative: Court for the trial of impeachment of Senators. 

45. 20. Judiciary: Regulate the alteration of the salary of judges. 

1788, June 25. Proposed by the Virginia convention, together with a bill of 
rights, at the time of the ratification of the Constitution. Elliotts Debates, 
III, pp. 669-661. 

46. 1. Legislative: Apportionment of Representatives. 

47. 2. Financial: Elzcise tax prohibited. 

48. 3. Financial: Restriction upon the levying of direct taxes. 

49. 4. Legislative: Restriction upon the Federal control over the elec- 
tion of Senators and Representatives. 

50. 5. Personal Relations: Restrictions upon naturalization of citizens. 

51. 6. Commerce: Commercial monopolies prohibited. 

52. 7. War: Standing army in time of peace. 

53. 8. Financial: Regulate the borrowing of money on United States 
credit. 

54. 9. War: Restriction on the declaration of war. 

55. 10. Personal Relations: Restricting the suspension of habeas corpus. 

56. 11. Territorial: Restricting the power of Congress over the Federal 
town. 

57. 12. Territorial: Power of Congress over other Federal territory. 

58. 13. Legislative: Regulate the alteration of the compensation of 
Senators and Representatives. 

59. 14. Legislative: Publication of Journals: Open session: Yeas and 
nays. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 309 

GO. 15. Financial: Capitation tax prohibited. 

61. 16. Legislative: Term of eligibility of Senators: Recall of Senators. 

62. 17. Legislative: Senators and Representatives ineligible to civil 
office dnring term. 

68. 18. Legislative: Filling vacancies of Senators. 

64. 19. Commerce: Application of Federal bankruptcy law restricted. 

65. 20. Executive: No third term. 

(K). 21. Ebcecntive: Power to grant pardon for treason prohibited. 

67. 22. Executive: Restricting the President from conmianding the 
Army in the field in person. 

68. 23. Judiciary: Writs, process, etc., in the name of» etc. 

69. 24. Judiciary: Jurisdiction of the Fedei-al courts. 

70. 25. Judiciary: Courts for trial of impeachments. 

71. 26. Judiciary: Commission to revise judgment of Supreme Court. 

72. 27. Judiciary: Judges of Supreme Court ineligible to other offices. 

73. 28. Judiciary: Restriction over cases involving land controversies. 

74. 29. War: Restriction on period of service of militia without the 
State. 

75. 30. Personal Relations: Titles of nobility. 

76. 31. Legislative, Executive, Judiciary: Oath. 

77. 32. Executive: Choice: To permit the choice of an elector in dis- 
tricts by inhabitant of the district for one year. 

1788, July S6. Proposed by the New York conyention, together with a bill 
of rights, at the time of the ratification of the Constitution. Elliot's Debates, 
I, pp. "329-881. 

78. 1. Division: Reservation of nondelegated powers. 

79. 2. Legislative: Apportionment of Representatives. 

80. 3. Financial: Restriction in the levying of direct taxes. 

81. 4. Legislative: Senators and Representatives ineligible to civil 
office during term. 

82. 5. Legislative: Publication of journals. 

83. 6. Financial: Publication of Treasury accounts. 

84. 7. Foreign Affairs: Ratification of treaties. 

85. 8. Commercial: Restriction in i)assage of navigation laws. 

86. 9. War: Standing army in time of peace. 

87. 10. War: Term of enlistment of soldiers limited. 

88. 11. War: Regulation of militia. 

89. 12. War: Restriction on Congress declaring a State in rebellion. 

90. 13. Legislative: Restriction on the powers of Congress over the 
Federal town. 

91. 14. Executive: Limitation upon the eligibility of President. 

92. 15. Judiciary: Jurisdiction of Federal courts. 

98. 16. Personal Relations: Rights of defendant in criminal trial. 

94. 17. Legislative: Restriction on Federal control of election of Sen- 
ators and Representatives. 

95. 18. Personal Relations: Rights reserved. 

96. 19. Legislative: Regulate the alteration of the compensation of 
Senators and Representatives. 

97. 20. Legislative: Tribunal for trial of impeachment of Senators. 

98. 21. Judiciary: Regulate the alteration of salary of judges. 



310 AMERICAN HISTORICAL ASSOCIATION. 

99. 22. Commercial: Commercial monox)olies prohibited. 

100. 23. Foreign Affairs: Treaties opposed to laws of the United States 
not valid. 

101. 24. Commercial: Regulation of commerce and navigation laws. 

102. 25. Financial: Congress restricted from interfering with the 
redemption of a State's paper money, etc. 

103. 26. War: Restriction upon the introduction of foreign troops into 
the United States. 

1788, Ang. 2. Proposed by the first constitntional conyention of North 
Carolina as necessary for their ratification of the Constitntlon, together with 
a bill of rights. Elliot's Debates, i v, pp. °:$44-247. 

104. 1. Division: Reservation of nondelegated powers. 

105. 2. Legislative: Restriction on Federal control of election of Sen- 
tors and Representatives. 

106. 8. Judiciary: Jurisdiction of Federal courts. 

107. 4. Amendment: After 1793, 11 of the original 13 States required 
for the ratification of an amendment. 

108. 5. Judiciary: Extent of jurisdiction. 

109. 6. Personal Relations: Military duty. 

110. 7. Financial: Capitation tax prohibited. 

111. 8. Financial: Restriction in levying of direct taxes. 

112. 9. Financial: Consent of three-fourths of State legislature neces- 
sary for a direct tax. 

118. 10. Legislative: Publication of the journals. 

114. 11, Financial: Publication of Treasury accounts. 

115. 12. War: Standing army in time of peice. 

116. 13. Financial: Regulation on the borrowing of money on United 
States credit. 

117. 14. War: Restricting the declaration of war. 

118. 15. Personal Relations: Titles of nobility. 

119. 16. Judiciary: Judges of Supreme Court ineligible to office and 
Federal officers incapable of holding State offices. 

120. 17. Commercial: Abolition of the slave trade. 

121. 18. Legislative: Recall of Senators. 

122. 19. Police Power: Authorizing Congress to establish a rule for the 
settlement of the poor throughout the United States. 

128. 20. Commercial: Commercial monopolies prohibited. 

124. 21. Legislative: Yeas and nays. 

1790, May 29. Proposed by the Rhode Island convention at the time of their 
ratification of the Constitution. Elliot's Debates, t, pp. °39A-837. 

125. Amendment: Convention to amend the Constitution. 

1789, May 0. Ist Cong:., Ist ses& Mr. Bland of Virginia, in the Honne, pre- 
sented an application from the legislature of Virginia, bearing the date of 
Nov. 14, 1788, for a convention to amend the Constitution. Ordered entered 
in the journals and carefully preserved. H. J., pp. °34-35 (reprint, pp. 
028-29). 

126. Amendment: Convention to amend the Constitution. 

1789, May 0. 1st Cong., Ist seas. Mr. Lawrence of New York, in the House, 
presented an application from the legislature of New York, bearing the date 
of Feb. 5, 1789, for a conyention to amend the Constitution. Ordered entered 
on the Joumab and carefully preserved. H. J., p. <^ (reprint, pp. 29-W). 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 311 

127. Preamble: Basis of powers. 

128. Legislative: Apportionment of Representatives. 

129. Legislative: Compensation of members. 

130. Personal Relations: Freedom of religion and right of conscience. 
I'.M, Personal Relations: Freedom of speech and of press. 

132. Personal Relations: Right to assemble and of petition. 

133. Personal Relations: Right to keep and bear arms. 

134. Personal Relations: Quartering of soldiers in time of peace. 

135. Personal Relations: Trials for crime: Rights of property. 

136. Personal Relations: Bail, fines, and punishment. 

137. Personal Relations: Search and seizure. 

138. Personal Relations: Rights of defendant in criminal cases. 

139. Personal Relations: Reserved rights of the people. 

140. Personal Relations: No State shall violate the rights of conscience: 
Freedom of the press: Trial by jury. 

141. Personal Relations: Restriction in cases open to appenl. 

142. Personal Relations: Trial in criminal cases by jury. 

143. Per.vonal Relations: Suits at common law trial by jury. 

144. Distribution of Powers: To the departments. 

145. Divisir)n of Powers: Nondelegated powers reserved to the States. 

146. Ratification of the Constitution: Change number of art. 7 to art. 8. 

liKS), Junes. IstCoDg, 1st 8688. By Mr. Madison of Virginia. JntheHonse: 
referred to Com. of the Whole. Annals, i, pp. <'438-4a6, 450. July 21. Com. of 
the Whole discharged and referred to a sjiecial com. Annals, pp. 660-665, 
July 28, com. report. Annals, p. 672. 

147 [1271. Preamble: Derivation of powers from the people. 

1789, Aug. lii. IstCong., Ist sess. Art. 1 of the report of the special com. 
considered in the House. Annals, p. **707. Aug. 14: passed by Com. of the 
Whole. Tbid., 719. Aug. 19; rejected by House. Ibid., p. 766. 

14S. Preamble: Amendment: Submitted to the States. 

1789, Aug. 13. 1st Cong., l«t sess. Art. 1 of the special com. report con- 
sidered. Mr. Sherman moved an amendment. Annals, p. 706. Aug. 19, Mr. 
Sherman's motion renewed, and iMtssed. Ibid., p. 766. 

149 [128], Legislative: Apportionment of Representatives. 

1789, Aug. 14. 1st Cong., 1st sens. Art. 1, sec. 2, par. 3, of com. report; con- 
sidered. Annals, p. ''719. Amended by Mr. Sedgwick. Ibid., p. 728. 

150 [149]. Legislative: Apportionment of Representatives. 

1789, Aug. 14. Ist Cong., Ist sess. By Mr. Vining of Delaware. To amend 
art. 1, sec. 2. par. 3, of com. report; negatived. Annals, p. *'719. 

151 [149]. Legislative: Apportionment of Representatives. 

1789, Aug. 14. 1st Cong., Ist sess. By Mr. Ames of Massachusetts. To 
amend art. 1. sec. 2, par. 3, of com. report; negatived. Annals, pp. 720-725. 

152 [149]. Legislative: Apportionment of Representatives. 

1798, Aug. 14. By Mr. Sedgwick of Massachusetts, to amend art. 1. sec. 2, 
par. 8, of com. report; passed. Annals, pp. 725-728. 

153 [149]. Legislative: Apportionment of Representatives. 

1789, Aug. 14. By Mr. Ames of Massachusetts, to amend art. 1, sec. 2, par. 3 
of com. report; suggested. Annals, p. 728; Aug. 19, made motion. Ibid.. 76(1 
Aug. 20, several amendments proposed and tabled. Ibid., 766. Aug. 21. reso- 
lution of Mr. Ames passed in an amended form. Ibid., 733. 

154 [129]. Legislative: Compensation of members. 

1789, Aug. 14. Art. 1, sec. 6, of com. report passed. Annals, pp. *'728, 729. 



312 AMERICAN HISTORICAL ASSOCIATION. 

155 fl30]. Personal Relations: Freedom of religion. 

1789, Aug. 15. Art. 1, mn: 9, of reijort of special com. couc^idered and 
amended. Annals, p. 720. Mr. Sherman moved to strike out the entire 
amendment. Ibid. , p. 7«I0. 

1M\ [155]. Personal Relations: Freedom of religion. 

17H0, Aug. 15. By Mr. Li vermore of New Hampshire, to amend art. 1, seo. <V, 
of com. report; passed. Annal.s, p. 731. 

157 [155]. Personal Relations: Freedom of religion. 

1780, Aug. 15. By Mr. Madison of Virginia, to amend art. 1, sec. 0, of 
special com. reix>rt; motion withdrawn. Annals, p. 731. 

158 [131]. Personal Relations: Freedom of speech and of the press, etc. 

1780, Aug. 15. Report of com. Fourth proposition, second clause, con- 
sidered; passed. Annals, pp. 731, 747. 

159 [158]. Personal Relations: Freedom of speech and of the press. 

1780, Aug. 15. By Mr. Sedgwick of Massachusetts, to amend article of com. 
report; negatived. Annals, pp. 730, 731-747. 

160 [133]. Personal Relations: Right to keep and bear arms. 

1780, Aug. 17. Report of com. Fourth proposition, fourth clause, consid- 
ered; passed. Annals, pp. 740-752. 

161 [160]. Personal Relations: Right to keep and bear arms. 

1780, Aug. 17. By Mr. Gerry of Massachusetts, to amend article of com. 
report; not .seconded. Annals, p. 760. 

162 [160]. Personal Relations: Right to keep and bear arms. 

1780, Aug. 17. By Mr. Jackson of Georgia, to amend article of com. report; 
not seconded. Annals, p. 750. 

163 [160]. Personal Relations: Right to keep and bear arms. 

1780, Aug. 17. By Mr. Benson of New York, to amend article of com. 
report; negatived. Annals, p. 751. 

164 [160]. Personal Relations: Right to keep and bear arms. 

1780, Aug. 17. By Mr. Gerry of Ma8.>4achusott$v. to amend article of com. 
report; not seconded. Annals, p. 751. 

165 [160]. Personal Relations: Standing army in time of peace. 

1780, Aug. 17. By Mr. Burke of South Carolina, to amend article of com. 
report by adding a clauHO a.s above: iioKatived. Annals, p. 751. 

166 [134]. Personal Relations: Quartering of troops. 

1780. Aug. 17. Report of com. Fourth proposition, fourth clause, consid- 
ered: passed. Annals, p. 752. 

167 [166]. Personal Relations: Quartering of troops. 

1780, Aug. 17. By Mr. Sumter of South Carolina, to amend article of com. 
report; negatived. Annals, p. 752. 

168 [166]. Personal Relations: Quartering of troops. 

1780, Aug. 17. By Mr. Gerry of Ma.s.sacbusettH, to amend article of com. 
report; negatived. Annals, p. 752. 

169 [135] [136]. Personal Relations: Trial: Rights of defendant. 

1780, Aug. 17. Report of com. Fourth proposition, fifth clause, considered: 
passed as amended by Mr. I^awrence. Annals, p. °753. 

170 [169]. Personal Relations: Trial: Rights of defendant. 

1780, Aug. 17. By Mr. Benswn of New Y<irk, to amend article of cx>m. 
report; negatived. Annals, p. 7.5:{. 

171 [169]. Personal Relations: Trial: Rights of defendant. 

1780, Aug. 17. By Mr. Partridge of Ma-ssachusetts, to amend article of corn- 
report; negatived. Annals, p. 753. 



PROPOSED AMEXDMEXTS TO THE CONSTITUTION. 313 
172 [169]. Personal Relations: Trial: Rights of defendant. 

1789, Aug. 17. By Mr. Lawrence of New York, to amend article of com. 
rei>ort; passed. AnnalB, p. 753. 

178 [187]. Personal Relations: Freedom from search and seizure. 

1789, Ang. 17. Report of com. Fourth proposition, seventh clause, consid- 
ered; passed as amended by Mr. Qerry. Annals, p. °754. 

174 [178]. Personal Relations: Freedom from search and seizure. 

1789, Aug. 17. By Mr. Gerry of Massachusetts, to amend articlo of com. 
report; passed by Com. of the Whole. Annals, p. 754. 

175 [178] . Personal Relations: Freedom from search and seizure: War- 
rants. 

1788, Aug. 17. By Mr. Benson of New York, to amend article of com. 
report; n^^tived. Annals, p. 754. 

176 [178]. Personal Relations: Freedom fi'om search and seizure: War- 
rants. 

1780, Aug. 17. By Mr. Benaon of New York, to amend article of com. 
report; negatived. Annals, p. 754. 

177 [189]. Personal Relations: Reserved rights of the i)eople not dis- 
paraged. 

1780, Aug. 17. Com. report. Fourth proposition, eighth clause passed. 
Annals, p. 754. 

178 [189]. Personal Relations: Reserved rights of the people. 

1789, Aug. 17. By Mr. Gerry of Massachusetts, to amend article of com. 
report; not seconded. Annals, p. 764. 

179 [140]. Personal Relations: No State shall infringe the equal rights 
of conscience. Freedom of speech and of press, etc. 

1789, Aug. 17. ReiMrt of special com. Fifth proposition, art. 1, sec. 10, con- 
sidered, passed as amended by Mr. Llvermore. Annals, p. 755. 

180 [179] . Personal Relations: No State shall infringe the equal rights 
of conscience, freedom of speech and of press, etc. 

1789, Aug. 17. By Mr. Livermore of New Hampshire, to amend fifth propo- 
sition; passed Com. of the Whole. Annals, p. 755. 

181 [141]. Personal Relations: Trials: Appeal to the Supreme Court. 

1789, Aug. 17. Report of com. Sixth proposition, art. :), sec. 2, passed. 
Annals, p. 755. Mr. Benson moved to strike out first part; not seconded. 
Ibid., 755. 

182 [181]. Personal Relations: Trials: Appeal to the Supreme Court. 

1789, Aug. 17. By Mr. Sedgwick of Massachusetts, to amend article of com. 
report; negatived. Annals, p. 756. 

188 [142] . Personal Relations: Rights of defendant in criminal trial. 

1780. Aug. 17. Report of com. Seventh proposition, art. 3, sec. 2, passed as 
amended by Mr. Livermore. Annals, p. 7.'j6. 

184 [188]. Personal Relations: Rights of defendant in criminal trial. 

1789, Aug. 17. By Mr. Burke of South C^arolina, to amend article of com. 
report; negatived. Annals, p. 756. 

1H5 [188]. Personal Relations: Rights of defendant in criminal trial. 

1789, Aug. 17. By Mr. Liivermore of New Hampshire, to amend article of 
com. rei>ort; passed. Annals, p. 7.56. 

186 [188]. Personal Relations: Rights of defendant in criminal trial. 

1789, Aug. 17. By Mr. Burke of South Carolina, to amend the article of com. 
report; negatived. Annals, p. <^Q0. 



314 AMERICAN HISTORICAL ASSOCIATION. 

187 [1-124]. AmemlmentB: Proposed by the States. 

1789, Aug. 18. By Mr. Qerry of Massachust^tts, that such of the amend- 
ments to the CouHtitution proposed by the several States as are not in sub- 
stance comprised in report of com. be referred to Com. of the Whole; nega- 
tived (10 to 34). H. J., p. 102. Annals, p. 7.57. • 

188 [183]. Personal Relations: Rights of defendant in criminal trial. 

1780, Aug. 18. Com. report. Seventh proposition, second clause, passed. 
Annals, pp. 759-700. 

189 [183]. Personal Relations: Rights of defendant in criminal trial. 

1780, Aug. 18. By Mr. Burke of South Carolina, to amend article of com. 
report; negatived. Annals, p. 700. 

190 [145] . Division of Powers: Non delegated powers reserved. 

1780, Aug. 18. Com. report. Ninth proposition, considered and passed, as 
amended by Mr. Carroll. Annals, p. 701. 

191 [190]. Division of Powers: Non delegated powers reserved. 

1780, Aug. 18. By Mr. Tucker of South Carolina, to amend article of 
com. report; negatived. Annals, p. 701. 

193 [190]. Division of Powers: Non delegated powers reserved. 

1780, Aug. 18. By Mr. Carroll of Maryland, to amend article of com. 
report: passed Com. of the Whole. Annals, p. 701. 

193 [146]. Power of Amendment: Ratification of the Constitution. 

1780, Aug. 18. Report of com. Tenth proposition, to change art. 7 to art. 8, 
passed Com. of the Whole. Annals, p. 701. 

194. Legislative: Term of Representatives. 

1780, Aug. 18. By Mr. Tucker of South Carolina, to add to art. 1, sec. i, 
claused; referred to Com. of the Whole; negatived. H. J., p. <*108. AnnalH, 
p. 0701. 

Id'). Legislative: Election and term of Senators. 

1780, Aug. IH. By Mr. Tucker of South Carolina, to add to art. 1, sec. 2, 
clause 3; referred to Com. of the Whole; negatived. H. J., p. ''1(13. Annals, 
p. «701. 

196. Legislative: Time, place, and manner of election. 

1780, Aug. 18. By Mr. Tucker of South Carolina, to amend art. 1, sec. 4, 
clause 1; referred to Com. of the^hole; negatived. H. J., p. "KB. Annals, 
p. «'701. 

197. Legislative: State to judge of election of Senators and Representa- 
tives. 

1780, Aug. 18. By Mr. Tucker of South Carolina, to amend art. 1, sec. 6, 
clause 1; motion to refer to Com. of the Whole negatived. H. J., p. ''103. 
Annals, p. '*701. 

198. Legislative: Roles of proceedings of Congress. 

1780, Aug. 18. By Mr. Tucker of South Carolina, to amend art. 1, sec. 5, clause 
2; motion to refer to Com. of the Whole negatived. H.J.,p. °l(& Annals, 
p. <»702. 

199. Legislative: Exclude members of Congress from office. 

1780, Aug. 18. By Mr. Tucker of South Carolina, to amend art. 1 , sec. 0. clause 
2; motion to refer to Com. of the Whole negatived. H. J., p. <*103; Annals, 
p. "702. 

200. Finance: Direct taxes. 

1780, Aug. IK. By Mr. Tucker of South Carolina, to add to art. 1, sec. 8, clause 
1; referred to Com. of the Whole; negatived. H. J.,p "108; Annals, p. "702. 

201. Jndiciary: Courts of admiralty. 

1780, Aug. IK. By Mr. Tucker of South Carolina, to amend art. 1, sec. 8, clause 
0; referred to Com. of the Whole; negatived. H J., p. «104; Annals, p. *788. 



PR0P08ED AMENDMENTS TO THE CONSTITUTION. 315 

202. Territorial: Legislation of Federal districts. 

1789, Aug. 18. By Mr. Tucker of South Carolina, to add to art. 1, sec. 8, clause 
17; referred to Com. of the Whole; negatived. H. JT., p. *1<H; Annals, p. **76e. 

208. Personal Relations: Titles of nobility, presents, etc., prohibited. 

1789, Aug. 18. By Mr. 'Pucker of South Carolina, to amend art. 1, sec. 9, clause 
7; referred to Com. of the Whole. H. J., p. ''lOi; Annals, p. °762. 

204. Finance: Duties on imports and exports. 

1789, Aug. 18. By Mr. Tucker of South Carolina, to amend'art. 1, sec. 10, clause 
2; referred to Com. of the Whole. H. J., p. "104; Annals, p. **7(K. 

205. Execntiye: Term of office of President. 

1789, Aug. 18. By Mr. Tucker of South Carolina, to add to art. 2, sec. 1, clause 
6; referred to Com. of the Whole: negatiyed. H. J. , p. '104. Annals, p. ''TdS. 

206. Executive: Military power of the President. 

1789, Aug. 18. By Mr. Tucker of South Carolina, to add to art. 2, sec. 2, clause 
1 ; referred to Com. of the Whole ; negatived. H. J. , p. °104; Annals, p. ^82. 

207. Executive: Powers of the President, to suspend. 

1789, Aug. 18. By Mr. Tucker of South Carolina, to add to art. 2, sec. 2, clause 
3: referred to Com of the Whole; negatived. H.J.,p.°104; Annals, p. **708. 

208. Judiciary: Courts of admiralty. 

1789, Aug. 18. By Mr. Tucker of South Carolina, to amend art. 8, sec. 1; 
motion to refer to Com. of the Whole negatived. H. J., p. <'104; Annals, p. **782. 

209. Judiciary: Jurisdiction of Supreme Court. 

1789. Aug. 18. By Mr. Tucker of South Carolina, to amend art. 3, sec. 2, 
clause 1; referred to Com. of the Whole; negatived. H. J., p. ''104; Annals, p, 
»7e2. 

210. Legislative, Executive, Judiciary: Oath of office. 

1789, Aug. 18. By Mr. Tucker of South Carolina, to amend art. 6, clause 3; 
referred to Com. of the Whole; negatived. H. J., p. °104; Annals, p. o762. 

211 [156]. Personal Relations: Freedom of religion. 

1789, Aug. 20. By Mr. Ames of Massachusetts, to amend fourth amendment 
of com. report; -passed. Annals, p. °7W. 

212 [160] . Personal Relations: Right to bear arms. 

1789, Aug. 20. Sixth amendment of reiMrt of com. amended; ixused An- 
nals, p. 707. 

218 [169]. Personal Relations: Trial by jury. 

1789, Aug. 21. By Mr. Gerry of Massachusetts, to amend fourth proposi' 
tion, second clause, of com. report; negatived. Annals, p. ''767. 

214 [169]. Personal Relations: Criminal trials. 

1789, Aug. 21. By Mr. Qerry of Massachusetts, to amend fourth proposition, 
second clause, of com. report; jMMsed. Annals, p. 707. 

*215 [149]. Legislative: Apportionment of Representatives. 

1789, Aug. 21. Art. 1 of the report to the House; passed by House. H. J., p. 
<>107; Annals, p. "773. See Nos. S42. 286 for amendment in Senate and amend- 
ment of conference com. 

*216 [154] . Legislative: Compensation of members of Congress. 

1789, Aug. 21. Art. 2 of the report to the House; passed by House H. J., 
p. 107; Annals, pp. "728-729. See No. 243 for amendment In Senate. 

*217 [156] [211]. Personal Relations: Freedom of religion and right of 

conscience. 

1789, Aug. 21. Art. 3 of the report to the House; passsed by House. H. J., 
p. ''lOT. See No. 217 for amendment in Senate and of conference com. 



316 AMERICAN HISTORICAL ASSOCIATION. 

*218 [158]. Personal Relations: Freedom of speech and of the press, etc. 

1789, Aug. 21. Art. 4 of the report to the House; paased by House. H. J., 
p. <'107; Annals, pp.* °73L-747. See No. 251 for amendment in Senate and its 
incorporation in art. 3. 

*219 [160]. Personal Relations: Right to keep and bear arms. 

1780, Aug. 21. Art. .5 of the report to the House: passed hy Hotise. H. J., 
p. °107. Bee No. 253 for Senate amendments. 

**^20 [166]. Personal Relations: Quartering of troops. 

1789, Aug. 21. Art. 6 of report to House; passed by House. H. J., p. '107. 
Sept. 4-24, passed by Senate. S. J . , pp. 119, 131 , 146, 148: See No. 297 for list of 
States ratifying. 

***221 [174]. Personal Relations: Search and seizure: Warrants. 

1789, Aug. 21. Art 7 of report to House; passed by House. H. J., p.<*106. 
Sept. 4-24, passed by Senate. S. J. , pp. 119, 181, 146, 148. See No. 297 for list of 
States ratifying. 

*222 [172] . Personal Relations: Trial for crimes. Rights of property. 
1789, Aug. 21. Art. 8 of report to House ; passed by House. H. J. , p. °107. See 
No. 254 for amendment in Senate. 

*22d [185] [188]. Personal Relations: Right of defendant in criminal 
cases. 

1789, Aug. 21. Art. 9 of report to House; passed by House. H. J., p. "108; 
Annals p. ''756. See No. 254 for amendment in Senate and conference com. 

♦224 [188]. Personal Relations: Right of trial by jury, etc. 

1780, Aug. 2i. Art. 10 of report to House; passed by House. H. J., p. ''lOB. 
See No. 255 for amendment in Senate. 

*225 [181]. Personal Relations: Appeal to Supreme Court limited. 

1780, Aug. 21. Art. 11 of report to House; passed by House. H. J., p. "106. 
See No. 257 for amendment in Senate. 

*226 [143]. Personal Relations: Trial by jury in suits at common law. 
1780, Aug. 21. Art. 12 of report to House; passed by House. H. J., p. *>10B; 
Annals, p. ^760. See No. 258 for amendment In Senate. 

***227 [169]. Personal Relations: Bail, fines, etc. 

1780, Aug. 21. Art. 13 of report to House; iMtssed by House. H. J., p. ^107. 
Sept. 7-24, passed by Senate as Art 10. S. J. . pp. 121, 131 , 146, 148. See No. 207 for 
list of States ratifying. 

*228 [180]. Personal Relations: The States prohibited from infringing 
certain rights. 

1780, Aug. 21. Art. 14 of report to House; passed by House. H. J., p. °106. 
Sept. 7, rejected by Senate. S. J., p. 121. 

***229 [177]. Personal Relations: Reserved rights. 

1780, Aug. 21. Art. 15 of report to House; passed by House. H. J., p. ''lOS. 
Sept. 7-24, passed by Senate. S. J., pp. 122, 131. 146, 148. See No. 207 for list of 
States ratifying. 

*230 [144]. Distribution: Powers among the three departments of Gov- 
ernment. 

1780, Aug. 21. Art. 16 of report to House; passed by House. H. J., p. °108. 
Annals pp. *'7flO-701 . Sept. 7, rejected by Senate. S. J. , p. 122. 

281 [192]. Division: Nondelegated powers reserved. 

1780, Aug. 21. Art. 17 of report of House; passed by House as amended by 
Mr. Sherman. H. J., pp. oKW- 100. 

232 [231]. Division: Nondelegated powers reserved. 

1780, Aug. 21. By Mr. Gerry of Massachusetts, to amend art. 17; negatived 
(17 to 82). Annals, pp. 0767-766. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 317 

*233 [231]. Diyifiion: Nondelegated powers reserved. 

1789, Aug. 21. By Mr. Sherman of Connectlcnt, to amend art. 17; iMused the 
Honse. Annals, p. o768. See No. 206. 

234. Legislative: Election of Senators and BepreeentativeB. 

1780, Aug. 21. By Mr. Burke of South Carolina, to add an amendment; neg- 
atived (23 to 28). H. J., p. °\(J0; Annals, pp. 76&-778. 

235 [234] . Legislative: Election of Senators and Representatives. 

1789, Aug. 21. By Mr. Sedgwick of Massachuaetts, to amend Mr. Burke's 
amendment; negatived. Annals, pp. °770-772. 

236. Finance: Requisitions. 

1788, Aug. 22. By Mr. Tucker of South Carolina, to add an amendment; 
negatived (9 to 3!)) . H . J. , p. ^1 10; Annals, pp. <>778-777. 

237. Judiciary: Inferior courts: Courts of admiralty. 

1789, Aug. 2Z. By Mr. Tucker of South Carolina, in the House, to amend 
art. 1, sec. 8, clause 9; negatived. H. J. , p. <^111 ; Annals, p. <*778. 

238. Legislative, Executive, Jadiciary: Oath of office. 

1789, Aug. 22. By Mr. Tucker of South Carolina, in the House, to amend 
art. 6, sec. 3; negatived. H. J., p. °111 ; Annals, p. °ns. 

239. Commerce: Commercial monopolies. 

1789, Aug. 22. By Mr. Gerry of Massachusetts, to amend; negatived. H. J., 
p.oiU; Annals, p. ©778. 

240. Personal Relations: Titles of nobility. 

1789, Aug. 22. By Mr. G^rry of Massachusetts, to amend; negatived. H. J., 
p.°lll; Annals, p. 0778. 

241 [215]. Legislative: ApxK)rtionment of Representatives. 

1789, Sept. 2. Motion to amend art. 1 in the Senate; negatived "(LS to 6). 
S. J., p. ^115; Annals, p. 74. 

*242 [215] . Legislative: Apportionment of Representatives. 

1789, Sept. 2. Motion to amend art. 1 ; passed. S. J. , p. ©US; Annals, pp. o74-75. 
See No. 295 for further amendment. 

**243 [216] . Legislative: Compensation of members. 

1789. Septs. Motion to amend art. 2; passed. S.J., pp, °lld,181. 

Ratified by the legislatures of the following States: Maryland, Dec. 19,1789. 
8. J., p. 106, 1st Cong., 2d sess. North Carolind, Dec. 22, 1789. S. J., p. 103, Ist 
Cong., 2d8e8s. South Carolina, Jan. 19, 1790. 8. J., p. 50, Ist Cong., 2d sees. 
Delaware, Jan. 28, 1790. 8. J., p. 35, 1st Cong., 2d sess. Vermont, Nov. 3, 1791. 
8. J.. p. 98, 2d Cong., Ist sess. Virginia, Dec. 15, 1791. 8. J., p. 69, 2d Cong., 1st 
sess. 

Rejected by New Jersey, Nov. 20, 1789. 8. J., p. 199,, Ist Cong., 2d sess. New 
Hampshire, Jan. 25, 1790. 8. J. . p. 105, 1st Cong. , 2d sess. Pennsylvania, March 
10, 1790. S. J. , p. 39, Ist Cong. , 2d sess. New York, March 27, 1790. 8. J. , p. 63, 
1st Cong. , 2d sess. Rhode Island, June 15. 1790. 8. J. , p. 110, Ist Cong, , 2d sess. 

The journals give no record of the action of the legislatures of Massachu 
chusetts, Connecticut, and Oeorgia. For copies of the resolutions of ratifl 
cation passed by the legislatures of the States, see Documentary History of 
the Constitution of the United States, VoL ii, pp. 825-390, in Bulletin of the 
Bureau of Rolls and Library of the I>epartment of State, No. 7. 

244 [217]. Personal Relations: Freedom of religion and right of con- 
science. 

1789. Sept. 3. Motion to amend art. 3; negatived; reconsidered and passed; 
motion to strike out art. 3: negatived. S. J. , p. «116. See Nob. 247, 288. 

245 [217]. Personal Relations: Freedom of religion, etc. 

1789. Sept. 3. Motion to amend art. 3; negatived. S. J., p. "116. 



318 AMERICAN HISTORICAL ASSOCIATION. 

246 [217]. Personal Relations: Freedom of religion, etc. 

1789. Sept. 3. Motion to amend art. 3; negntived. S. J., p.*" 117. 

247 [217]. Personal Relations: Freedom of religion. 

1789. Sept. 3. Motion to amend art. 3 ; passed. S. J. , p. **117. See No. 288 for 

further amendment. Ibid., p. 129. 

« 

248 [218]. Personal Relations: Freedom of speech and press, etc. 

1780. Sept. 3. Motion to amend art. 4; negatived, 14 to 2. 8. J.. p. °117. 

249 [218]. Personal Relations: Freedom of speech and press, etc. 

1780. Sept. 3. Motion to amend art. 4; negatived. S.J.,p.''117. 

250 [218] . Personal Relations: Freedom of sx)eech and press, etc. 

1780. Sept. 3. Motion to amend art. 4; negatived. 8. J.,p. "117. 

251 [218]. Personal Relations: Freedom of speech and press, etc. 

1 780. Sept 4. Motion to amend art. 4; passed. S. J. , p. 118. Sept. 0, stricken 
out. S.J.,p.*120. 

252 [219] . Personal Relations: Standing army. 

1780, Sept. 4. Motion to add to art. 5 an amendment as above; negatived, 
9 to 6. S. J., p. *118. 

258 [219] . Personal Relations: Right to keep and bear arms. 

1780, Sept. 4. Motion to amend art. 5; passed. S. J., p. <*110. See No6.290, 
291 for further amendment. 

*254 [222] . Personal Relations: Trial for crime: Freedom from second 

trial. 

1789, Sept. 4. Motion to amend art. 8; passed. S. J., p. °119. See No. 207 for 
further amendment. 

255 [224]. Personal Relations: Indictment by grand jury. 

1789, Sept. 4. Motion to amend art. 10 as above; passed. S. J. , p. °119. Sept. 
0, art. 10 stricken out. 

256 [225]. Judiciary: Extent of jurisdiction. 

1780, Sept. 4. Motion to insert in place of art. 11; negatived. S. J., p. ^110. 

257 [225]. Personal Relations: Appeal to higher court. 

1789, Sept. 4. Motion to amend art. 11; passed. S. J., p. *'119. Sept. 9, 
art. 11 stricken out. Ibid., p. 130. 

258 [226] . Personal Relations: Trial by jury in suits at common law. 

1780, Sept. 7. Motion to amend art. 12, passed. S. J., p. °121; Annals p. 
°76. See No. 203 for further amendment. 

259. Finance; Requisitions instead of direct taxes. 

1780, Sept. 7. Motion to add an amendment as above; negatived. 8. J., p. 
"121; Annals p. "76. 

260. Legislative: Elections of Senators and Representatives. 

1789, Sept. 7. Motion to add an amendment as above; negatived. 8. J., p. 

"122. 

261. Legislative, Executive, Judiciary: Oath of oflfice. 

1789, Sept. 7 Motion to add an amendment to admendment, art. 6, sec. 3: 
negatived. S. J., p. *>122; Annals p. *'76. 

262. Commerce: Commercial monopolies. 

1789, Sept. 7. Motion to add an amendment as above; negatived. 8. J., p. 
°122. 

263. Personal Relations: Titles of nobility. 

1789, Sept. 7. Motion to add an amendment as above; negatived. S. J., p. 

264. Legislative: A debtor of the United States excluded from Congress. 

1789. Sept. 7. Motion to add an amendment as above; negatived. S. J., p. 
»1«. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 319 

265 [233], Division; Nondelegated powers reserved. 

1789, Sept. 7. Motion to amend art. 17; negatived. S. J., P- "l^S. 

***266 [233]. Division: Nondelegated powers reserved. 

17BP, Sept. 7. Motion to amend art 17; passed. S. J. , pp. 12Si-123, 181, 146, 148. 
See No. 297 for list of States ratifying. 

267. Personal Relations: Natural rights, life, liberty, etc. 

1789, Sept. 8. Motion to add an amendment as above; negatived. S. J., p. 
0123. 

268. Personal Relations: Source of powers. 

1789, Sept. 8. Motion to add an amendment as above; negatived. S. J., p. 
0134. 

269. Personal Relations: Government instituted for the people. 

1789, Sept. 8. Motion to add an amendment as above; negatived. S. J., p. 
0134. 

270. Personal Relations: Tenure of office. 

1789, Sept. H. Motion to add an amendment as above; negatived. S. J., p. 
0134. 

271. Distribution: Of powers among the legislative, executive, and 

judiciary. 

1789, Sept. 8. Motion to add an amendment as above; negatived. S. J., p. 
01S4. 

272. Personal Relations: Redress, when restrained of liberty. 

1789, Sept. 8. Motion to add an amendment as above; negatived. S. J., p. 

0134. 

273. Personal Relations: Right of remedy for injuries, etc. 

1789, Sept. 8. Motion to add an amendment as above; negatived. S. J., p. 
0124. 

274. Legislative: Publication of journals. 

1789, Sept. 8. Motion to add an amendment as above; negatived. S. J., p. 

0125. 

275. Legislative: Members of Congress excluded from office. 

1789, Sept. 8. Motion to add an amendment as above; negatived. S. J., p. 
0125. 

276. Finance: Publication of accounts of public moneys. 

17K9, Sept. 8. Motion to add an amendment as above; negatived. S. J., p. 
0125. 

277. Foreign Affairs: Commercial and territorial treaties. 

1789, Sept. 8. Motion to add an amendment as above; negatived. S. J., p. 
0125. 

278. Commerce: Navigation laws. 

178I^ Sept. 8. Motion to add an amendment as above; negatived. S. J., p. 
0125. 

279. Executive: Term limited. 

1789, Sept. 8. Motion to add an amendment as above; negatived. S. J., p. 
•^126. 

280. War: Standing army in time of peace. 

17K9, Sept. 8. Motion to add an amendment as above; negatived. S. J., p. 

281. War: Period of enlistment of soldiers. 

1789, Sept. 8. Motion to add an amendment as above; negatived. S. J., p. 
oi2«. 

282. War: State militia. 

1789, Sept. 8. Motion to add an amendment as above; negatived. S. J., p. 
0128. 



320 AMEHICAN HISTORICAL ASSOCIATION. 

28^ Territorial: (Congress power over the '* Federal town," etc. 

1789, Sept. 8. Motion to add an amendment as above; negatlTed. S. J., p. 
0126. 

2SA, Judiciary: Extent of jurisdiction. 

1788, Sept. 8. Motion to add an amendment as above; negatived. B. J., p. 
0126. 

9JS6. Legislative: Election of Senators and Representatives. 

1789, Sept. 8. Motion to add an amendment as above; negatived. S. J., p. 
•127. 

286. Legislative: Tribnnal for trying impeachment of Senators. 

1789, Sept. 8. Motion to add an amendment as above; negatived. 8. J., p. 
•127. 

287. Judiciary: Salary of judges. 

1789, Sept. 8. Motion to add an amendment as above; negatived. 8. J., p. 
•127. 

*288 [247]. Personal Relations: Freedom of religion, of speech, and of 

press. 

1789, Sept. 9. Motion to amend art 8; passed. S. J., p. "129. 

289 [258]. Personal Relations: Right to keep and bear arms. 

1789, Sept. 9. Motion to amend art. 5; negatived. S. J., p. •129. 

290 [253] . Personal Relations: Right to keep and bear arms. 

1789, Sept. 9. Motion to amend art. 5; imssed. S. J., p. •129. See below for 
further amendment. 

***291 [290] . Personal Relations: Right to keep and bear arms. 

1789, Sept. 9. Motion to amend art. 6; passed. S. J., pp. ^129, 131, 145, 148. 
See No. 297 for list of States ratifying. 

***292 [254]. Personal Relations: Trial for crimes: Rights of property. 
1789, Sept 9. Motion to change art. 8 to art. 7 and amend; passed. S. J., 
pp. •129-iaO, 181, 146, 148. See No. 297 for full list of States ratifying. 

***298 [258] . Personal Relations: Trial in civil cases. 

1789, Sept. 9, Motion to change art. 12 to art. 9 and amend; passed. S. J., 
pp. •180, 131, 146, 148. See No. 297 for list of States ratifying. 

294 [255]. Personal Relations: Trial by jury, etc. 

1789, Sept. 9. Motion to reconsider art. 10 and restore certain words struck 
out lost on a tie vote (8 to 8). S. J., p. •ISO. 

"^^5 [242]. Legislative: Apportionment of Representatives. 

1789, Sept. 23. Amendment to art. 1 reported by the conference com. Sept 
26; passed House. H. J., p. •162; Annals, p. •QIS. Passed Senate. S. J., pp. 
•145, 148, 150. 

Ratified by the legislatures of the following States: New Jersey, Nov. 20, 
1789. S. J., p. 199, 1st Cong., 2d sees. Maryland, Dec. 19, 1789. S. J., p. 106, 
1st Cong., 2d seas. North Carolina, Dec. 22, 1789. S. J., p. 103, Ist Cong., 2d 
sees. South Carolina, Jan. 19, 1790. S. J., p. 50, Ist Cong., 2d sess. New 
Hampshire, Jan. 25, 1700. S. J., p. 105, Ist Cong., 2d sess. New York, Mar. 
27, 1700. S. J., p. 58, 1st Cong., 2d sens. Rhode Island, June 16, 1700. S. J., 
p. 110, Ist Cong., 2d sess. Virginia, Oct. 25, 1791. S. J., p. 90, 2d Cong., 1st sess. 
Pennsylvania, Sept. 21, 1791. President sends a message (Oct. 25,1791) an- 
nouncing that Pennsylvania reconsiders her action of Mar. 10, 1790, and now 
ratifies the first article. Sept. 21,1791. S. J., p. 11. Vermont, Nov. 8,1791. 
8. J., p. 96, 2d Cong., 1st. sess. 

Rejected by Delaware, Jan. 28, 1790. S. J., p. 35, Ist Cong., 2d sess. 

The journals give no record of the action of the legislatures of Massachu- 
setts, Connecticut, and Georgia. See references to Documentary History of 
the Constitution of the United States under No. 243 for resolutions of the 
legislatures. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 321 

***396 [247]. Personal Relations: Freedom of religion, of speech, and cf 

press. 

1789, Sept. 23. Amendment to art. 3 reported by the conference com. Sept. 
25; passed House. H. J., p. ^152; Annals, p. <^13. Paf^sed Senate, S. J. pp. 
°146, 148, 150. See No. 2»7 for list of States ratifying. 

***297 [254]. Personal Relations: Right of defendant in criminal cases. 

1789, Sept. 23. Amendment to art. 8 reported by the conference com. Sept. 
25; passed House. H. J., p. °152; Annals, p. <^13. Passed Senate. S. J., pp. 
0145,148,130. 

The ten amendments were ratified by the legislatnres of the following 
States: New Jersey, Nov. 20, 1789. S. J., p. 199, 1st Cong., 2d sess. Maryland, 
Dec. 19, 1789. S. J., p. 106, 1st Cong., 2d sess. North Carolina, Dec. 22, 1789. S.J. 
p. 103, 1st Cong., 2d sess. South Carolina, Jan. 19, 1790. S. J., p. 50, 1st Con;?.. 
2d sess. New Hampshire, Jan. 25, 1790. S. J., p. 105, 1st Cong., 2d sess. Dela- 
ware, Jan. 28, 1790. S. J., p. 35. Ist Cong., 2d sess. Pennsylvania, Mar. 10, 1790. 
S. J., p. 39, 1st Cong., 3d sess. New York, Mar. 27, 1790. S. J., p. 53, 1st Cong., 
Sdseps. Rhode Island, June 1.5, 1790. S. J., p. 110, 1st Cong., 2d sess. Vermont, 
Nov. 3, 1791. S. J., p. 98, 2d Cong., 1st sess. Virginia, Dec. 15, 1791. S. J., p. 09, 
2d Cong., Ist sess. 

The joumalB give no record of the action of the legislatures of Massachu- 
setts, Connecticut, and Georgia. For copies of the resolutions of ratification 
passed by the legislatures of the States, see Documentary History of the Con- 
stitution of the United States, Vol. ii, pp. 325-390 (in Bulletin of the Bureau 
of Rolls and Library of the Department of State, No. 7). 



298. Judiciary 
399. Judiciary 

300. Judiciary 

301. Judiciary 

803. Judiciary 
808. Judiciary 

804. Judiciary 

305. Judiciary 

306. Judiciary 

307. Judiciary 

308. Judiciary 

309. Judiciary 

310. Judiciary 

311. Judiciary 

312. Judiciary 



A "general judicial court" in each State. 

Composition. 

Jurisdiction. 

Relation of circuit and judicial courts. 

Number necessary for a quorum. 

Fees: Proceedings. , 

Appointment of officers of the court. 

Writs in the courts. 

Impeachment. 

Trial of impeachment. 

Extent of judgment. 

Judges. 

Judges. 

Number of judges. 

Duties of officers. 
1791, Mar. 3. Ist Cong.. 3d so.sa. By Mr. Benson of New York. IntrtKiuc'txl; 
consideration deferred to next Congress. H. J.,pp. ''98-l(X); Annals, p. ^^ 1976- 
1977. 

313. Judiciary: Jurisdiction, States, parties. 

1703, Feb. 20. 2d Cong., :id sess. Motion in the Senate by Mr. Sedgwick; 
considered and postponed. S. J., pp. °65, 71 : Annals, pp. ^651, S52. 056. 

314. Finance: Limitation on taxation. 

315. Commerce: Commercial monopolies prohibited. 

1798, Mar. 2. 2d (>ong., 2d sess. Motion in the Senate; tabled. 8. J., p. ''84; 
Annals, p. °663. 

316. Finance: Direct taxes defined. 

317. Executive Offices: Members of Congress excluded. 

318. Legislative: Officials and bankers ineligible to Congress. 

1793, Mar. 2. 2d Cong., 2d sess. Motion in the Senate; tabled. S. J., J). '*H\ 
Annals, p. "663. 

B, Doc, 353, pt, 2 31 



322 AMERICAN HISTORICAL ASSOCIATION. 

319. Jndiciary: Courts in which the power is vested. 

1793, Mar. 2. 2d Cking., 2d seas. Motion in Senate, tabled. B. J.,p.<>84; An- 
nals, p. "'OeS. 

819a. Judiciary: Suability of a State. 

1793, Bept. 27. Resolutions of the legislature of Massachusetts. Resolves 
. of Massasachnsetts, Vol. ix. A., p. 106. 

319b. Judiciary; Suability of a State. 

1793, Oct. 2, Thursday. Resolution of the general assembly of Connecticut. 
Copy of r^olution in Massachusetts Archives, Senate Mis., ^V^; Cat. of 
Doc. and Papers of Senate of Mass., Vol. i, p. ^|'. 

319c. Judiciary: Suability of a State. 

1703, Dec. 3. Resolution of the legislature of Virginia. Copy of reeolntion 
in Maasasachusetts Archives. Senate Mis., ^^. 

320. Legislative: Bank officers and stockholders ineligible to Congress. 
1793, Dec. 24. 3d Coug., Ist sess. Motion in Senate; considered; amend- 
ments made and agreed to; rejected (12 to 13). S. J., pp. <^, 31, 32, 83; Annals, 
pp. "23, 31, 32. 

***321. Judiciary: Extent of jurisdiction. (The XI Amendment.) 

17M, Jan. 2-14. 3d Cong.. 1st sess. Motion in Senate considered. Mr. Qal- 
latin attempts to amend. Passed (23 to 2). S. J., pp. ''23, 29, 30, 31, 74: Annals, 
pp.^25.30. 

Jan. 15- Mar. 12. Reported to the House. Read twice; to Com. on the Whole. 
Attempt to amend. Negatived ( 8 to 77) ; passed (81 to 9). H. J. pp. **80, 81, 164, 
165, 166, 185. 186; Annals, pp. 225, 476, 477, 478. 

The journals show that the President reported the action of the legislatures 
of the States as follows: Message of the President. Jan. 8, 1705, announced the 
ratification of the legislatures of New York, Massachusetts, and Vermont. 
8d Cong., 2d sess., S. J., p. 41. Message of the President, Feb. 17, 1796, an- 
nounced the ratification of New Hampshire. 3d Cong. 2d sess., S. J., p. 69. 
Message of the President, Feb. 25, 1795, announced the ratification of Georgia. 
3d Cong., 2d sess. 8. J., p. 84. Message of the President, Mar. 2, 1795, an- 
nounced the ratification of Delaware. 3d Cong. 2d sesb., S. J., p. 108. Mes- 
sage of the President, Jan. 29, 1796, announced the ratification of Rhode 
Island and North Carolina (Feb. 7, 1795). S. J., 4th Cong, l^t sess., p. 61. See 
Documentary History of the Constitution of the United States, Vol. it, pp. 
402-404. Message of the President, Jan. 8, 1798, announced the ratification of 
Kentucky (Dec. 7, 1794) and the ratification of the amendment by the legis- 
latures of three-fourths of the States. 5th Cong., 2d sess.. S. J., p. 51; Annals, 
p. 483. See Documentary History of the Constitution, Vol. ir, pp. 394-396. 
Message of the governor of Virginia, Feb. 12, 1798, giving notification of the 
ratification of Virginia (Nov. 18, 1794). 5th Cong., 2d sess., S. J., p. 113. See 
Documentary History of the Constitution Vol. it, pp. 392-;}93. 

Certified copies of the actioa of the legislatures, in the Bureau of Rolls and 
Library, State Deiwrtment, show that in addition the following States rati- 
fied the amendment: Maryland, Dec. 26, 1794. Documentary History of the 
Constitution, Vol. ii, pp. 397-400. Connecticut, May Bossion, 1794. Ibid., p. 
401. South Carolina, Dec. 4, 1797. Ibid., pp. 405-407. 

There is no record in the journals or at the Department of State of the 
action of New Jersey, Pennsylvania, and Tennessee. It is probable that they 
did not ratify. The Secretary of State was in doubt for some time as to 
whether the amendment had received the necessary number for ratification 
or not, owing to the admission of Tennessee, Juno 1, 1796, some two years 
after the submission of the amendment. It was finally shown to have re- 
ceived the ratification of three-fourths 02) of the States prior to the admis- 
sion of Tennessee, and hence all doubt as to its adoption was removed. See 
letters of Timothy Pickering, Secretary of State. Domestic Letters, Vol. x, 
pp. 104, 212-214, 310-311, 328, 336-337, in the Bureau of Rolls and Library. Depart- 
ment of State. 



PROPOSED AI^IENDMENTS TO THE CONSTITUTION. 323 

322 [321 J. Jndioiary: Extent of jurisdiction. 

ITMf Jan. 14. dd Congr., Ist sess. By Mr. GaUatin of PenDBylvania. Motion 
to amend; rejected. S. J., p. °30; Annals, p. °30, 

323 [321]. Judiciary: extent of jurisdiction. 

17M, Jan. 14. 8d Cong., Ist seas. Motion in the Senate to amend the original 
motion; rejected. S.J.,p."SO; Annals, p. "80. 

324 [321]. Legislative: Bank officials inelig^ible to Congress. 

1794, Jan. 16. 8d Cong., 1st sess. Motion in the Senate to amend the original 
motion; rejected (12 to 18). S. J., p. °33; Annals, p. **32. 

325 [321]. Judiciary: Extent of jurisdiction. 

1794, Mar. 4. 3d Cong., 1st sess. Motion in the Honse to amend original 
motion of the Senate on jndicial power; rejected (8 to 77). H. J., pp. ^^164, 165; 
Annals, p. ^476. 

326. Territorial powers: Not to curtail or abridge the limits. 

17M, Jan. 9. 3d Cong., 1st sess. Motion in the Senate; tabled. S. J., p. °27; 
Annals, p. ^28. 

327. Legislative: Expiration of term (June 1). 

1795, Mar. 3. 8d Cong., 2d sess. By Mr. Burr of New York; tabled. S.J. 
pp. <>112,113; Annals, p. ^'SSS. 

327a. Foreign Affairs: Treaties to be submitted to House of Represent- 
atives in certain cases. 

327b. Judiciary: Trial of impeachments by some tribunal other than 
the Senate. 

327c. Legislative: Term of Senators, three years. 

327d. Judiciary: United States Judges ineligible to other ofBces. 

17%, Dec. 16. Resolntions of the legislature ot Virginia. Copy in Massa- 
chusetts Archives, Senate Mis., 2075; Cat. of Doc. and Papers of the Senate 
of Massachusetts, p. ^g<>. 

328. Executive: Choice of: Electors to designate in their ballots person 
voted for as President, etc. 

1797, Jan. 9. 4th Cong., 2d sess. By Mr. W. Smith of South Carolina; to 
Com. of the Whole. H. J., p. '•SS; Annals, p. *» 1824. 

329. Executive: Choice of: Electors to designate; contested elections 

determined. 

179S, Jan. 24. 6th Cong., 2d sess. By Mr. Marshall of Kentucky, in the Sen- 
ate; considered and postponed. Annals, p. ** 483. 

330. Legislative: Qualifications necessary for eligibility. 

331. Executive: Qualifications necessary for eligibility. 

1798, July 7. 5th Cong., 2d sess. By Mr. Qoodhue of Maraachnsetts: tabled. 
S. J., p. "496; Annals, p. °G02. 

332. Legislative: Qualifications necessary for eligibility. 

333. Executive: Qualifications necessary for eligibility. 

1798, July 9. 6th Cong., 2d sess. By Mr. Foster of Massachusetts, in the 
House, from the legislature of Massachusetts; tabled. Annals, pp. <*2132- 
2133; Resolves of Massachusetts, Vol. x, pp. 31. 

333a. Executive: Qualifications necessary for eligibility. 

333b. Legislative: Qualifications necessary for eligibility. 

1798, Oct., 2d Thursday. Resolutions of the general a.s.scmbly of Connecti- 
cut approving Ma.S8achusett.s resolves. Copy in Archives of Massachusetts. 
Senate Misc. «V'- (Cat. of Doc. and Papers in Archives of Senate, Vol. i, 



324 AMERICAN HISTORICAL ASSOCIATION. 

334. Executive: Choice of: Electors to designate x>6r8on voted for as 
President. 

1799, Feb. 16. 5th Cong.. 3d sc8s. By Mr. Foster of New Hampshire, in the 
House; tabled. Motion to refer to Com. of the Whole; lost (56 to 28). 
Annals, p. 2919. 

334a. Executive: Choice of: Electors to designate persons voted for as 

President. 

1799, Feb. 28. Resolution of the legislature of Massachusetts. Resolves of 
Massachusetts, Vol. x, p. 69. 

334b. Executive: Choice of: Electors to designate persons voted for as 
President. 

1799. Resolutions of the legislature of Vermont. Referred to in Resolves 
of Massachusetts, Vol. x, p. 153. 

335. Judiciary: Judges restricted from holding other offices. 

1800, Feb. 3. 6th Cong., 1st sess. By Mr. Pinckney of South Carolina; 
Read; tabled; considered. S. J.,pp.°78,122; Annals, pp. "^l, 42, 63. 

336. Executive: Choice of: Electors to designate persons voted for. 

1800, Feb. 4. 6th Cong., 1st ses.<i. Motion in the House; to Com. of the 
Whole. H. J. , pp. *» J3«, 137; Annals, p. "510. 

337. Judiciary: Judges ineligible to other offices. 

1800, Feb. 13. 6th Cong., 1st sess. By Mr. Livingston of New York, in the 
House; tabled. Annals, p. ^523. 

338. Executive: Choice of: Electors to be chosen by districts. 

1800, Mar. 14. 6th Cong., 1st sess. By Mr. Nicholas of Virginia, in the 
House; tabled. Annals, p. ^627. 

339. Legislative: Representatives to be chosen by districts. 

1800, Mar. 14. 6th Cong., Ist sess. By Mr. Nicholas of Virginia, in the 
House; tabled. Annals, p. ^628. 

340. Executive: Choice of: Electors to be chosen by districts. 

1800, Nov. 21. 6th Cong., 2d sess. By Mr. Nicholas of Virginia; referred to a 
select com. ; com. report adversely. H. J., pp. °8, 110; Annals, pp. °785, 941-946. 

341. Legfislative: Representatives to be chosen by districts. 

1800, Nov. 21. 6th Cong., 2d sess. By Mr. Nicholas of Virginia; referred toa 
select com; com. report adversely. H. J., pp. °9, 110; Annals, pp. °785, 941-946. 

341a. Executive: Uniform mode for the choice of President. 

1801, Feb. 17. Resolution of the legislature of Maryland. Resolves of Mas- 
sachusetts, Vol. x, p. 213. 

342. Executive: Choice of: Election of President and Vice-President. 

343. Legislative: Election of Representatives. 

1802, Feb. 1. 7th Cong., Ist seas. By Mr. Morris of Vermont, from the gen- 
eral assembly of Vermont. H. J., pp. 187, 188; Annals, p. 472. 

344. Choice of Executive: 

1803, Feb. 15. 7th Cong., 1st sess. By Mr. Walker of New York, from the 
legislature of New York; read; to Com. of the Whole. H. J., pp. 239, 254; 
Annals, p. 509. 

*34o Executive: Choice of: Electors to designate persons voted for as 
President and Vice-President: Electors to be chosen by districts. 
1803, Feb. 19-May 1. 7th Cong., 1st s<»ss. Motion in House; referred to Com- 
of the Whole: considered; section in r«>gard to the choice of electors by dia 
tricts rejected; as amended, read third time; passed U7 to 14). 

May 3. Received in Senate; rejected U5 to 8). H. J., pp. o254, 255, 545, 546, 
561, 552, 553, 561; S. J., pp. °267, 273; Annals, pp. <^3a3, 304, oe02, 608, 1255, 1288, 1293, 
;296. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 325 

346. Executive: Choice of: Electors to be chosen by districts. 
847. Legislative: Representatives to be chosen by districts. 

180^. Feb. 19. 7th Cung.,l8t seas. By Mr. Bradley of Vermont, from the 
leerialature of Vermont. S. J., pp. ©lOl, 102; Annals, p. °190. 

348. Executive: Choice of. 

349. Legislative: Election of Representatives. 

18(B, Feb. 30. 7th 0ong.,l8t seas. By Mr. Stanley of North Carolina, from 
the legislature of North Carolina; read and referred to Com. of the Whole. 
H. J.,pp.2S6-7; Annals, p. 629. 

350. Executive: Choice of: Electors to be chosen by districts. 

351. Executive: Choice of: Designation of person voted for as President. 

1802, Feb. 24. 7th Cong., 1st sess. By Mr. Morris of New York, from the 
legislature of New York; read. B. J., PP- ** 105-106; Annals, p. ''191. 

352. Executive: Choice of: Designation of person voted for as President: 

1802, Apr. 12. 7th Cong., 1st sess. By Mr. Clinton of New York; tabled; 
considered; postponed to next session. S. J., p. °188; Annals, p. ^250. 

353. Executive: Choice of: Electors to be chosen by districts. 

1802, Apr. 16. 7th Cong., 1st sess. By Mr. Bradley of Vermont, In the Sen- 
ate; postponed to next session. Annals, pp. ^'263, 264, 293. 

354. Executive: Choice of: Designation of person voted for as President. 

1808, Jan. 3. 7th Cong., 2d sess. By Mr. Lelb of Pennsylvania; referred to 
Com. of the Whole; po6ti;>oned. H. J. , pp. ^67-58, 220; Annals, p. 304. 

355. Executive: Choice of: Electors to be chosen by districts. 

1808, Feb. 1. 7th Cong., 2d sess. By Mr. Huger of South Carolina; de- 
bated; to Com. of the Whole; postponed. H. J., pp.<*185,220,221; Annals, pp. 
0449,481-486.492.493. 

356. Executive: Choice of: Designationof person voted for as President. 

1803, Oct. 17. 8th Cong., 1st sess. By Mr. Dawson of Virginia; referred to 
Com. of Whole; to a select com.; amendment moved by Mr. Nicholson and 
by Mr. Clopton. H. J., PP- °11; Annals, pp. <»2?2, *'375, •»377. 

357. Eixecutive: Choice of: Electors to be chosen by districts. 

1803, Oct. 20. 8th Cong., 1st sess. By Mr. Huger of South Carolina; re- 
ferred to select com. H. J,, p. *>28; Annals, pp. **380-381. 

*^^358. Executive: Choice of. 

1803, Oct. 21-Dec. 2. 8th Cong. , Ist sess. By Mr. Clinton of New York; read; 
to select com. ; report of com. considered; amended; report further amend- 
ments; passed Senate (22 to 10). 

Dec. 5-9. Received in the House; considered; Mr. Elliot's amendment re 
jected; Mr. Dana's motion to strike out all in regard to Vice-Presidents re- 
jected; other amendments rejected; read third time, and passed (83 to 42). 
S. J., pp. «21-24, 28, 27, 51. 57, 64, 65, 66, 67, 74, 75. 76, 77, 79. 81, 89, 91. 93, 95, 99; H. J., pp. 
164, 170, l?i, 173-185, 190, 191. 195; Annals, pp. «16, 19, 20, 21, 81, 91, 106, 107, 108-210, 642, 
646-663,663-7^5. 

The amendment was declared in force by a proclamation of the Secretary 
of State, dated September 25, 1804. See circular letter of James Madison, 
Secretary of State, Domestic Letters, Vol. xiv, pp. 381-382, Bureau of Rolls 
and Librar^f , Department of State. Ratified by the legislatures of the fol- 
lowing States: Georgia, May 19, 1804; Kentucky; Maryland, November ses- 
sion, 1803; New Jersey, Feb. 23, 1804; New York; North Carolina; Ohio, 
December ses.sion. 1803; Pennsylvania, Jan. 7, 1804; Rhode Island, February 
session, 1804; South Carolina; Tennessee, July 27, 1804; Vermont, Jan. 30, 1804; 
Virginia, December session, 1803. Rejected by Connecticut May session, 
1804; Delaware; Massachusetts; New Hampshire (vetoed by the governor). 

Poor's Charters and Con.stituti<ms, Vol. i, p. 22. For copies of the ratifica- 
tion of several of the States, soe Documentary History of the Constitution of 
the Unit«»d States, Vol. ii, pp. HI^-AT}! (in Bulletin of the Bureau of Rolls and 
Library of the Department of State, No. 7). 



326 AMERICAN HISTORICAL ASSOCIATION. 

*359. Execntive: Choice of: Designation of person voted for as Presi* 

dent. 

1808, Oct. 26-28. 8th Cong., 1st sess. By Mr. Varnum, from com. ; considered 
in Com. of the Whole; attempts to amend by Messrs. Clay and Nicholson; 
recommended to Com. of the Whole; reported and amended; read third time, 
and passed (88 to 31). 

Oct. 28. Received by the Senate; postponed. H. J., pp. **48, 40, 51, 64; S. J., 
pp.31, 104; Annals, pp.27, 218, »383, 420-431, 490-407, 516-645. 

360. Execntive: Choice of. 

1803, Nov. 10. 8th Cong., 1st sess. By Mr. Bradley of Vermont, from the 
legislature of Vermont; read. S. J., p. 60; Annals, p. 76. 

361. Executive: Choice of: Designation of person voted for as President. 

1808; Nov. 11. 8th Cong., 1st sess. By Mr. Worthington of Ohio, from the 
legislature of Ohio; read. S. J., p. 51; Annals, p. 76. 

B61a. Commerce: Importation of slaves prohibited. 

1801, Dec. 14. Resolutions of the general assembly of North Carolina. 
Journal of the Senate of the Commonwealth of Pennsylvania (1804-06), pp. 
ni2-113. 

362. Execntive: After two terms ineligible for fonr years. 

1808, Dec. 12. 8th Cong., 1st sess. Report of Senate select com.; rejected 
(4 to 26). S. J., pp. 090-el ; Annals, pp. <'213-216. 

362a. Legislative: Recall of Senators by State. 

1804 (?). Resolution of the legislature of Virginia; referred to in Senate 
Journal, Massachusetts Legislature (1808-04), Vol. xxix, p. 231. 

3626. Commerce: Importation of slaves prohibited. 

1804, June 20. Resolution of the legislature of Massachusetts. Resolves of 
Massachusetts, Vol. xi, pp. *'204-206. Connecticut and Maryland answer that 
it is lnezi)edient. Resolves, June, 1805; p. 18. 

863. Legislative: Apportionment of Representatives to free inhabitants. 

364. Finance: Apportionment of direct taxes to free inhabitants. 

18(H, Dec. 7. 8th Cong., 2d sess. By Mr. Pickering of Massachusetts; 
tabled. S. J., p. *'39; Annals, p. *'21. From legislature of Massachusetts. For 
reply of legislature of Georgia disapproving, see Archives of Massachusetts, 
House Misc. 5027. Rex>ort and resolution of the legislature of Pennsylvania, 
Journal of Senate of Pennsylvania (1804-05), pp. °50-^. <>79-84. Reply of legis- 
lature of Kentucky, ibid, pp. 160-162. Other replies, see ante, p. 46, note 1. 

365. Judiciary: Extent of jurisdiction. 

1805, Feb. 8. 8th Cong., 2d sess. ByMr.Breckenridge of Kentucky; (legisla- 
ture of Kentucky) read and tabled. S. J.,pp. *'131-132; Annals, p. ^5:3. Pennsyl- 
vania concurred; Massachusetts nonconcurred. Resolves of Massachusetts, 
Vol. XI, p. 304-306. New Jersey nonconcurred. Jour, of Senate of Penn. 
(1806-07), pp. «196-197. 

365a. Judiciary: Elxtent of jurisdiction. 

1805, Dec. 7. Resolution of the legislature of Georgia approving the above 
resolution of Kentucky. Copy in Massachusetts Archives, House Misc. 5027. 

366. Judiciary: Removal of judges on joint address of both Houses. 

1805, Mar. 1. 8th Cong., 2d sess. By Mr. J. Randolph of Virginia; referred 
to Com. of the Whole. H. J., p. «150; Annals, p. "1213. 

367. Legislative: Recall of Senators. 

1805, Mar. 1. 8th Cong., 2d sess. Motion by Mr. Nicholson; referred to 
Com. of the Whole. H. J., p. "160; Annala, p. "1214. For resolution of legisla- 
ture of Massachusetts disapproving, see Massachusetts Senate Journal 
( 1803-04), Vol. XXIX, p. 231. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 327 

368. Commerce: Imt)ortation of slaves prohibited. 

180&, Mar. 3. 8th Cong., 2d sees. By Mr. Varnum of Massachusetts, from 
the legislature of Massachusetts; read and tabled. H. J., p. "171; Annals, 
pp. "1221-22. Resolves of Massachusetts, Vol. xi, p. 239. 

388a. Commerce: Importation of slaves prohibited. 

1806, Nov. 4. Resolution of the general assembly of Tennessee. Journal 
of Senate of Pennsylvania (1806;, p. 286. Copy in Massachusetts archives. 
House Misc., 5826. Legislature of Qeorgia disapproved of a similar amend- 
ment. See ibid. House Misc., 5927. 

369. Commerce: Importation of slaves prohibited. 

1800, Jan. 20. 9th Ck>ng., Ist sess. By Mr. Oliver of Vermont, from the legis- 
lature of Vermont; read and tabled. H. J. (reprint). Vol. v, p. 238. Annals, 
pp. 343-344. 

370. Judiciary: Extent of jurisdiction. 

1806, Jan. 22. 9th Cong., Ist sess. By Mr. Maclay of Pennsylvania, from the 
legislature of Pennsylvania; read; considered; posti)oned. S. J., pp. °84, 222 
263; Annals, pp., <*68, 198, 210. Disapproved by general assembly of New 
Jersey. See cony of minutes of Nov. 6, 1806, in Massachusetts Archives. 
Senate Misc., 3620. 

371. Judiciary: Removal of judges. 

1806, Feb. 7. 9th Cong., Ist sess. By Mr. J. Randolph of Virginia; referred 
to 0)m. of the Whole; considered in Com. of the Whole; report disagree- 
ment; motion to ixwtpone ; lost. H. J. , pp. *'204, 266, 267; Annals, pp. <>446, 409-607. 

373. Commerce: Importation of slaves prohibited. 

1806, Feb. 10. 9th Cong., Ist sess. By Mr. Tenney of New Hampshire, from 
the legislature of New Hampshire; read and tabled. H. J. pp. 206, 207; 
Annals, p. 448. 

373. Executive: Choice of: Elector to be chosen by districts. 

1806, Mar. 29. 9th Cong., 1st sess. By Mr. Thomas of New York; tabled. 
H. J., pp. «>389-300; Annals, pp. O894-805. 

374. Legislative: Government contractors excluded from House of Rep- 

resentatives. 

1806, Mar. 29. 9th Cong., 1st sess. By Mr. Newton of Virginia: tabled; 
referred to Com. of the Whole. H. J., pp. »389, 405, 406; Annals, pp. <>894, 933. 

375. Commerce: Importation of slaves prohibited. 

1806, Apr. 7. 9th Cong., 1st sess. By Mr. Wright of Maryland, from the 
legislature of Maryland. S. J., pp. ''271, 282; Annals, p. <'229, 232. Similar resolu- 
tions seem to have been proi)osed by the legislature of Maryland in the next 
year. See letter of governor of Maryland. Massachusetts Archives, Misc., 

376. Commerce: Internal improvements. 

1806, Dec. 2. 9th Cong., 2d sess. By President Jefferson. Statesman's 
Manuid, p. 191. 

377. Division of Powers: Necessary and proper laws. 

1806, Dec 11. 9th Cong., 2d sess. By Mr. Ciopton of Virginia; referred to 
Com. of the Whole. H. J. , p. "42; Annals, pp. "131-148. 

378. Judiciary: Extent of jurisdiction. 

1806, Dec. 26. 9th Cong., 2d sess. By Mr. Elliot of Vermont in the House, 
from the legislature of Vermont, concurring with the resolution of the legis- 
lature of Kentucky; read. Annals, p. 216; H. J., reprint, vol. 5, pp. 496,499. 

379. Judiciary: Elxtent of jurisdiction. 

1807, Feb. 20. 9th Cong. , 2d sess. By Mr. Clay of Kentucky; considered and 
I>ostponed. 8. J., pp. «»178,200; Annals, pp. "76,90. 



828 AMERICAN HISTORICAL ASSOCIATION. 

380. Judiciary: Composition, term of office, and removal. 

1807, Nov. 5. 10th Cong. . 1st seas. By Mr. Tiffin of Ohio; referred to a select 
com. S. J., pp. ^26, '>27, 131, 132; Annals, pp. «21, *»22, 90. 

881. Judiciary: Removal of judges. 

1808, Jan. 25. 10th Cong., 1st sens. By Mr. Robinson of Vermont, in the 
Senate, referred to select com. Annals, pp. 99. (From legislature of Ver- 
mont. ) Jour, of Senate of Pennsylvania (1807-08) pp. *'105-107. The legislatures 
of Rhode Island and Delaware disapproved. Annals, 11th Cong., Ist sees., 
p. 831. Jour, of Senate of Pennsylvania ( 1807-08) pp. «»258-280. 

382. Judiciary: Removal of judges. 

1808, Jan. 30. 10th Cong., Ist sees. By Mr. Campbell of Tennessee; referred 
to Com. of the Whole. H. J., p. **318; Annals, p. ^ISib. 

383. Judiciary: Term of office: Removal: Impeachment. 

1806, FeU 22. 10th Cong., Ist sess. By Mr. Maclay of Pennsylvania, in Sen- 
ate; by Mr. Whltehill in House, from the legislature of Pennsylvania: read; 
to select com. S. J., pp. *>109» 170; Annals, p. ''ISS, 1680. Jour, of Senate of Penn- 
sylvanU (1807-08) pp. ol63-170. 

384. Commerce: Importation of slaves punishable. 

1808, Feb. 23. 10th Cong., Ist sess. By Mr. Maclay of Pennsylvania, from 
the legislature of Pennsylvania; read. S. J., pp. °172, 178; Annals, p. <>131. 
Journal of Senate of Pennsylvania (1807-06) pp. °174, 208. Amer. State Papers, 
Misc. I, p. 716. 

385. Judiciary: Term and removal. 

1808, Feb. 24. 10th Cong. , 1st sess. By Mr. Whitehill of Pennsylvania, from 
the legislature of Pennsylvania; read; to Com. of Whole. H. J., pp. 402-403; 
Annals, pp. 1680-1682. See No. 383. 

386. Legislative: Recall of Senators. 

1806, Feb. 29. 10th Cong., Ist sess. By Mr. Clopton of Virginia, from the 
legislature of Virginia; passed by the legislature Feb. 9, 1806; read twice; to 
Com. of the Whole. H. J., pp.°422, 423; Annals, p. <'1696. Disapproved of by 
the legislatures of Maryland, Massachusetts, Vermont, New Jersey, Tennes- 
see, Qeorgia. Jour, of Senate of Pennsylvania ( 1 W)7-08) pp. o321, 118, 312; Ibid, 
(18(10-10) p. 88; Ibid. (1810-11) p. 37; Ibid. (1811-12) p. 95; also ante p. 66, note 1. 

387. Legislative and Executive Officers : Government contractors 
excluded from office: Members of Congress excluded from office. 

1808, Mar. 1. 10th Cong., Ist sess. By Mr. Van Horn of Maryland; tabled; 
to Com. of the Whole. H, J., p. «429; Annals, p. ^1714. 

388. Legislative: Removal of Senators. 

1808, Apr. 11. 10th Cong., 1st sess. By Mr. Giles of Virginia, in the Senate, 
from the legislature of Virginia. Annals, p. 325. See No. 386. 

389. Judiciary: Removal of judges. 

1808, Apr. 12. 10th Cong., Ist sess. By Mr. Adams of Massachusetts, from 
the legislature of Massachusetts; referred to select com. S. J ., p. 271 ; Annals, 
p. 331; Resolves of Massachusetts, Vol. xii, A (pp. 212-213), pp. 118-119. Reso- 
lution repealed by the next session of the legislature and instructions re- 
voked. Ibid, (p.317), p. 211. 

390. Legislative: Article 1: Term one year, and election of Representa- 
tives. 

391. Legislative: Article 2: Term of Senators three years. 

392. Executive: Choice of. Article 3: By lot from the retiring Senatx)rs. 

393. Executive: Article 4: Compensation. 

394. Executive: Legislative: Article 5: Vice-Presidency abolished: 
Speaker of Senate. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 329 

895. Executive: Article 6: Appointing power limited. 

396. Executive: Article 7: Power to fill vacancies and make removals. 

1808, April 12. 10th Cong., Ist sess. By Mr. Hillhonse of Connecticut; read. 
S. J., p. 273; Annals, pp. "356-368; speech in fall in American Regrister (1809), 
Chap. II. 

397. Judiciary: Impartial tribunal to determine disputes between the 

(General and State governments. 

1809, June 4. 11th Cong., Ist sess. American State Papers, Vol. ii. No. 266, 
pp. "2-7. Niles' Beg.XLiii, Suppl.p.24. Passed by the legislature of Penn- 
sylvania Apr. 3. Jour, of House of Representatives of Pennsylvania (1808-09) 
pp. °616-«29, »692-6»7, 786-798, 843, 910. Jour, of Senate of Pennsylvania (18ttM)9) 
pp. 268 et seq. 

1809, Annals, pp. 2253-2270; *»2286. American Register (1809), pp. 150-175, 
Disapproved by the legislature of Massachusetts. Resolves of Massachusetts. 
Vol. XII, p. 365. For resolutions of disapproval from the legislatures of eight 
other States, see ante p. 160, note 3. 

897a. Commerce: Limit duration of embargo. 

1809, June 19. Resolution of the legislature of Massachusetts. Resolves 
of Massachusetts, Vol. xii (p. 356), pp. °47&477; Massachusetts Senate Jour- 
nal, Vol. XXX, p. 88; House Journal, Vol. xxx, p. 123. Disapproved by the 
legislature of Delaware (December, 1809) and the legislature of Maryland 
(January-February, 1810). Massachusetts Archives, Legislative Doc., 6816, 
6823. Disapproved of also by the legislatures of Vermont, New Hami)6hire, 
New Jersey, Pennsylvania, North Carolina, and Tennessee. Journal of Sen> 
ate of Pennsylvania (1809-10) pp. 88-89, 166-160; Ibid. (1810-11) pp. 87-41; Ibid. 
(1811-12) pp. 95-96. Ante p. 264, note 4. 

397b. Commerce: Limit duration of embargo.' 

1809. Resolution of the general assembly of Connecticut approving the 
resolution of the legislature of Massachusetts. American Register, 1809, 
p. 181. 

398, Judiciary: Composition, term, removal. 

1809, Dec. 4. 11th Cong., 2d sess. By Mr. Pope of Kentucky; read twice; to 
com. S. J., pp. "22, 28, 28, 29; Annals, pp. °480, 483. 

**399. Personal Relations: Titles of nobility. 

1810, Jan. 18- Apr. 27. 11th Cong., 2d sess. By Mr. Reed of Maryland; 
read twice; to select com. of three; reported with amendment; considered: 
recommitted to a select com. of five; reported with amendment; recom- 
mitted; reported further amended; considered; amendment by Mr. Reed 
and Mr. Lloyd; considered; amendment to last report passed (26 to 1). Mr. 
Pope's amendment rejected (12 to 14). Further amended; read third time, 
and passed (19 to 5). 

Apr.27-May 1. Received in the House; read; to Com. of the Whole; con- 
sidered in Com. of the Whole; reported; read third time; ];)assed (87 to 3). 
S. J., pp. ^S3, 86, 92, 95, 96, 117, 1^,127, 140. 248, 295, 299, 335. 360, °361, 382, 363. 372, 390, 
395,396; H. J., pp. 609, 611, 645, 646; Annals, pp. »530, 547,549,571,572,576,635,671, 
672,1997,2006,2030. 

Ratified by the legislatures of the following States: Maryland, Dec. 25, 1810; 
Kentucky, Ja^. 31, 1811; Ohio, Jan. 31, 1811; Delaware, Feb. 2, 1811 ; Pennsylvania, 
Feb. 6, 1811: New Jersey, Feb. 13, 1811; Vermont. Oct. 24, 1811; Tennessee, Nov. 
21,1811; Georgia, Dec. 13, 1811; North Carolina. Dec. 23. 1811, Massachusetts, 
Feb. 27, 1812; New Hampshire, Dec. 10,1812; total 12. Rejected by New York, 
March 12, 1811 (by the Senate) ; Connecticut, May session, 1813; South Carolina, 
approved by the Senate, Nov. 28, 1811; i)ostponed by the House, Dec. 21,1811; 
reconsidered; committee reported unfavorably; not considered, Dec. 7, 1813; 
Rhode Island. Sept. 15, 1814; total 4. 

Virginia, action is not recorded in journals or Department of State. Annals 
of Congress, 15th Cong. 1st se.ss. pp. 630, °855, 1074; H. J., 96,221, 292. Letter of 



330 AMERICAN HISTORICAL ASSOCIATION. 

**399. Personal Relations : Titiles of nobility — Continued. 

John Q. Adams, Secretary- of State, Report Book (Dec. 1817, July 18K1), pp. li-15; 
Bareau of Rolls and Library, Department of State. For reprints of the cer- 
tified copies of the action of the various State legrlslatares, in Bareau of RoUs 
and Library, Department of State, see Documentary History of the Consti- 
tution of the United States, Vol. ii, pp. 452-S15. (Bulletin of the Bureau of 
Rolls and Library of the Department of State, No. 7.) 

400. Executive offices: Senators and Representatives excluded from civil 
office. 

1810, May 1. 11th Cong., 2d sess. By Mr. Macon of North Carolina; read; 
tabled. H. J., pp. <>639,640; Annals, p. 2008. 

401. Executive offices: Senators and Representatives excluded from civil 
office. 

1810, Dec. 10. 11th Cong., 3d sess. By Mr. Macon of North Carolina; read; 
to Com. of the Whole; considered; to select com.; reported; considered in 
Com. of the Whole; attempt to amend; reported to House in an amended 
form. Mr. Hubbard's amendment failed; House concur with Com. of the 
Whole (71 to 40): Speaker declared question lost; appeal taken, but Chair 
sustained and amendment failed. H. J., pp. <*25, 26, 61, 90, 181-186, 210, 211, 212, 
213, 214, 215, 217, 218, 219; Annals, pp. "See, 468, 841, 897, 906. 

402. Judiciary: Removal of judges. 

1811, Jan. 29. 11th Cong., 3d sess. By Mr. Wright of Maryland; motion to 
consider lost. H. J., pp. °189, 190; Annals, pp. <*896, 857. 

408. Executive: Appointments to civil office of relatives of Senators or 
Representatives prohibited. 

1811, Jan. 30. 11th Cong., 3d sess. By Mr. Quincy of Massachusetts; 
referred to Com. of the Whole; attempt to amend in Com. of the Whole by 
Mr. Wright. H. J., pp. "181-186. 

404. Finance: Duties on exports. 

1812, Mar. 12. 12th Cong., 1st sess. By Mr. Mitchell of New York; read. 
H. J., p. "403; Annals, p. "1201. 

405. Judiciary: Removal of judges. 

1812, Apr. 13. 12th Cong., Ist sess. By Mr. McKim of Maryland; read and 
tabled. H. J., p. "587; Annals, p. "1317. 

405a. Legislative: Term of Senator four years. 

1812. Resolution of the legislature of Tennessee. Niles' Register (Dec. 5, 
1812), Vol. Ill, p. 224; Vol. vi, p. 16. 

406. Legislative: Election of Representatives by districts. 

407. Executive: Choice of: Election of electors by districts. 

1813, Jan. 18. 12th Cong., 2d sess. By Mr. Pickens ot North Carolina; com- 
mitted to Com. of the Whole. H. J., pp. °183, 184; Annals, p. °M8. 

408. Legislative: Election of Representatives by districts. 

1813, Jan. 20. 12th Cong., 2d sess. By Mr. Turner of North Carolina, from 
the legislature of North Carolina; read twice; to select com. S. J., pp. °170- 
178, 130; Annals, pp. o57, 58. 

*409. Executive: Choice of: Election of electors by districts. 

1813, Jan. 20-Feb. 17. 12th Cong. , 2d sess. By Mr. Turner of North Carolina, 
from the legislature of North Carolina; read twice; to select com.; report; 
amendments made; considered in Com. of the Whole, and agreed to as 
amended by com.; Mr. Oerman^s amendment lost; read third time; passed 
Senate (22 to 9). 

Feb. 18. Received in the House; read twic»; to Com. of the Whole. S. J., 
pp. 0126-128, 130, 189, 302, 212, 213, 217, 219, 230, 221, 236, 227, 238, 229; H. J., pp. 819, 
827; Annals, pp. 057-^, 77, 80, 91, 1080, 1083. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 331 

410. Finance: Tax on exports. 

411. Commerce: Internal improvements, roads. 

412. Commerce: Internal improvements, canals. 

413. Finance: National Bank. 

181^ July 10. 13th Cong., 1st aess. By Mr. Jackson of Virginia: read; tabled. 
H. J., pp. *^190-191; Annals, p. 431. 

413a. Legislative and Executive: Uniform mode of electing Senators, 

Representatives, and electors. 

1813, Dec. U. 13th Cong., 2d sess. By Mr. Wright, in Honse, for a com. to 
devise uniform mode; com. appointed. Niles' Register, Vol. v, p. 272. 

414. Executive: Choice of: Election of electors by districts. 

1813, Dec. 20. 13th Cong., 2d sess. By Mr. Pickens of North Carolina; read; 
to Com. of the Whole; considered; House concur with Com. of the Whole in 
disagreement (83 to 64). H. J., pp. ^'dO-Sl, 90, 90, 107, 257; Annals, pp. ^TVf^ 

• iff, 04W. 

415. Finance: Tax on exports. 

416. Commerce: Internal improvements, roads. 

417. Commerce: Internal improvement, canals. 

418. Finance: National Bank. 

1814, Jan. 5. 18th Cong., 2d sess. By Mr. Jackson of Virginia; read; tabled; 
considered by Com. of the Whole; report their agreement to the House. 
H. J., pp. °ia2, 261, 257; Annals, p. «848. 

410. Legislative: Term of Senators four years. 

1814, Feb. 9. 13th Cong.. 2d sess. By Mr. Qrundy of Tennessee, in the 
Honse, from the legislature of Tennessee; passed Oct. 17, 1813; to Com. of the 
Whole. Annals, p. 1264; Niles' Register, Vol. v, p. 207. Resolutions of non- 
concurrence from the legislature of Massachusetts, New Hampshire, Ver- 
mont, Rhode Island, Maryland, and North Carolina. Jour, of Senate of 
Penn. (1813-14) pp. 0I88; Ibid (1814-15) p. 18; app. pp. 9-12, 32. 

419a. Legislative: Term of Senators four years. 

1814 Nov. 9. Resolution of the legislature of Qeorgia. Jour, of Senate of 
PennsylTania (1814-16) p. 17. Niles' Register, Vol. x, p. 177. Resolutions of 
the legislatures of North Carolina (Dec. 19, 181.5) and Ohio (Feb. 27, 181A) of 
nonconcurrence. Archives of Massachusetts. House Misc. 8106, 8183; Annals 
14th Cong., 1st sess., p. 366. Resolutions of Rhode Island, Louisiana, and New 
Hampshire of non-concurrence. Jour, of Senate of Penn. (1814-16) p. 38; Ibid, 
(181ft-17); app. pp. 20, 25; Ibid, (1817-18) p. 156. 

419b. Legislative: Term of Senators four years. 

1814, Feb. 21. Resolutions of the legislature of Pennsylvania. Journal of 
the Senate of Pennsylvania (1813-14) pp. 182, 205, 229, <>238, »273; Journal of 
House of Reps. (1813-14) *'70-71; 260,380, 357. For resolutions of non-concur- 
rence, see No. 419. 

420. Finance: Tax on exports. 

421. Commerce: Internal improvements, roads. 

422. Internal improvements, canals. 

1814, Sept. 27. 13th Cong., 3d sess. By Mr. Jackson of Virginia: referred 
to Com. of the Whole; considered; recommitted; postponed indefinitely. 
H. J., pp. °31, 39, 41, 62, 656; Annals, pp. ^324, 326, 1101. 

423. Finance: National Bank: Congress: Power to establish. 

1814,.Sept. 27. 13ih Cong., 3d sess. By Mr. Jackson of Virginia; referred 
to Com. of the Whole; considered by com. and struck out. H. J., pp. ^1, 39; 
Annals, 324^328, 339. 

424. Legislative: 1. Apjwrtionment of Representatives to free persons. 

425. Finance: Apportionment of direct taxes to free persons. 



832 AMERICAN HISTORICAL ASSOClATIOlf. 

436, Territorial : 2. Admission of new States on two- thirds vote only, 

427. Commerce: 3. Congress: Power to lay embargo limited. 

428. Commerce; 4. Congress: Power to interdict commercial intercourse 
limited. 

429. War: 5. Congress: Power to declare war. 

430. Personal Bights: Executive Officers: 6. No person hereafter nat- 
uralized eligible to office. 

431. Executive: 7. One term only: Not from same State twice in suc- 
cession. 

1815, Feb. 28. 13tli Cong., 3d sees. By Mr. Dana of Connecticut, from the 
legislature of Connecticut; read. S. J., p. <^485; Annals, p. 281. For replies 
of States non-concurring see ante p. 46, note 5. In addition North Carolina 
non-concurred. Jour, of Senate of Pennsylvania (1815-16) ; app. pp. 32Si. 

432. Legislative: 1. Apportionment of Representatives to free persons. 

433. Finance: Apportionment of direct taxes to free i)ersons. 

434. Territorial: 2. Admission of new States on two- thirds vote only. 

435. Commerce: 3. Congress: Power to lay embargo limited. 

436. Commerce: 4. Congress: Power to interdict commercial intercourse 
limited. 

437. War: 5. Congress: Power to declare war. 

438. Executive Officers: 6. No persons hereafter naturalized eligible to 
office. 

439. Executive Officers: 7. One term only: Not from same State twice 
in succession. 

1815, Mar. 2. 13th Cong., 3d sess. By Mr. Vamum of MaasachnsettA, from 
the legislature of MassacJiusetts; read. 8. J., 494; Annals, p. 284. 

440. Legislative: 1. Apportionment of Representatives to free persons. 

441. Finance: Apportionment of direct taxes to free persons. 

442. Territorial: 2. Admission of new States only by two-thirds vote. 

443. Commerce: 3. Congress: Power to lay embargo limited. 

444. Commerce: 4. Congress: Power to interdict commercial in tercoui'se 
limited. 

445. War: 5. Congress: Power to declare war. 

446. Executive Officers: 6. No person hereafter naturalized eligible to 
office. 

447. Executive: 7. One term only: Not from same State twice in suc- 
cession. 

1815, Mar. 3. 13th Cong. , 3d sess. By Mr. Pickering of MaMsachusettM; tabled. 
H. J., p. 0765-6; Annals, p. °\i*lfS», 1270. 

448. Commerce: Internal improvements. 

1815, Dec. 5. 14th Cong., 1st Bess. By President Madison in his seventh 
annual measage. Statesman's Manual, p. 332. 

449. Legislative: Election of Representatives by districts. 

450. Executive: Choice of: Election of electors by districts. 

1816, Jan. 5. 14th Cong., l.«<t 8e.s.s. By Mr. Pickens of North Carolina (from 
the legislature of North Carolina); to Coin, of the Whole. H. J., p. ^iaM»; 
Annals, p. o461. Jour, of Senate of Pennsylvania (1815-16) ; app. pp. ^29-30. 

451. Legislative: Term of Senators three years. 

1816, Jan. 25. 14th Cong., l.st sess. By Mr. Bibb of Georgia; read twice; 
considered in Com. of the Whole; failed to be read third time (7 to :J4). 8. J., 
pp.°112, 120, 147, 178, 222, 242; Annals, pp.°44, 161, 163. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 333 

451a. Execntive: Choice of: Electors by districts. 

451b. Legislative: Election of Representatives by districts. 

1818, Feb. 20. Resolution of the general assembly of Virginia, approving the 

resolutions of North Corolina. Massachusetts Archives. House Misc., 8178. 

Journal of Senate of Pennsylvania (1816-17) ; app. pp. *'17-18. 

452. Legislative: Election of Representatives by districts. 

453. Executive: Choice of: Electors by districts. 

1810, Feb. 27. 14th Cong., 1st sess. By Mr. Vamum of Massachusetts, from 
the leg^islature of Massachusetts; read; to a select com. of five; considered 
in Com. of the Whole; reported to Senate; considered; attempt to refer to a 
select com. to consider a direct vote for President defeated (12 to 21); motion 
to strike out second clause defeated (12 to 20V, postponed (18 to 14). S. J., 
pp. 0224^226, 246, 247, 282, 317-330; Annals, pp. 158, 164, 177, 227; Resolves of Mas- 
sachusetts, Vol. XV, pp. ®155-157. Vermont non-concurred. Jour, of Senate 
of Pennsylvania (1817-18), pp. o341-343. 

453a. Legislative: Election of Representatives by districts. 

1816. Resolutions of the legislature of New Jersey. Niles^ Register, Vol. 
XIII, p. 272. 

454. Legislative: Election of Representatives by districts. 

455. Executive: Choice of: Electors by districts. 

1816, Mar. 6. 14th Cong., Ist sess. By Mr. Pickering of Massachusetts; to 
Com. of the Whole. H. J., p. °446; Annals, pp. ni60, 1151. 

456. Judiciary: Removal of judges. 

1816, Mar. 7. 14th Cong., 1st sess. By Mr. Sanford of New York; read; con- 
sidered. S. J. , pp. 0268, 282; Annals, pp. 170, 177. 

456a. Executive: Choice of: Electors by districts. 

1816, Apr. 22. 14th C^ong., Ist sess. By Mr. Barbour, in Senate; by Mr. 
Pleasants, in House; resolution from the legislature of Virginia, agreeing 
with resolutions of North Carolina. Annals, pp. 336-337, "1404. 

457. Commerce: Internal improvements. 

1H16, Dec. 3. 14th Cong. , 2d sess. By President Madison in his eighth annual 
message. Statesman's Manual, p. 335. 

458. Legislative: Compensation of Senators and Representatives. 

1816, Dec, 10. 14th Cong., 2d. soss. By Mr. Barbour of Virginia; read twice; 
to a select com. S. J., p. °3Q; Annals, pp. °30, 40. 

458a. Legislative: Compensation of Senators and Representatives. 

1816. Resolution of the legutlature of Massachusetts. Niles' Register (Dec. 
14, 1816), Vol. IX, pp. °239, 250. 

459. Legislative: Election of Representatives by districts. 

460. Executive: Choice of: Electors by districts. 

1816, Dec. 11. By Mr. Pickens of North Carolina; to Com. of the Whole; 
considered by com. ; reported to the Hou^e. Mr. Pickering moved an amend- 
ment; tabled; attempt to consider defeated. H. J., pp. °54, 55, 78, 84, 89, 04, 
841; Annals, pp. ^257, 329, 341. 

461. Personal Relations: Establishment of a national university. 

1816, Dec. 12. 14th Cong., 2d sess. By Mr. Atherton of New Hampshire; 
read; refused to consider. H, J., p. *>63; Annals, p. '*288. 

461a. Legislative: Compensation of members of Congress. 

1817, Jan. 17. Resolutions of the legislature of Kentucky. Jour, of Senate of 
Pennsylvania (1817-18), pp. "»61 -62. Resolutions of nonconcurrence from the 
legislatures of Vermont, Ohio, Illinois, and New Hampshire. Ibid., pp. 343- 
344; Ibid. (1818-19), pp. 146, 715; Jour, of House of Rep. of Pennsylvania (l«ltm9), 
p. 38. 



334 AMERICAN HISTORICAL ASSOCIATION. 

462. LegiBlative: Election of Representatiyes by districts. 

468. Executive: Choice of: Election of electors by districts. 

1817, Jan. 21. 14th Cong., 2d sess. By Mr. Pickens of North Carolina, from 
the legislature of North Carolina, resolution indorsing resolution of the leg- 
islature of Massachusetts. H. J., p. ''Sid; Annals, p. **Q94. 

464. War: Power of the General Government to train militia. 

1817, Feb. 3. 14th Cong., 2d sess. By Mr. Harrison of Ohio; that a com. 
be appointed to inquire if an amendment is necessary; tabled. 

Feb. 28. Mr. Harrison introduced an amendment; read; tabled. H. J., 
pp. 328, 0488; Annals p. °1041. 

465. Commerce: Internal improvements 

466. Personal Relations: Power of Congress to establish seminaries of 
learning. 

1817, Dec. 2. 15th Cong., 1st sess. By President Monroe in his first annual 
message. Statesman's Manual, p. 402. 

467. Commerce: Internal improvements. 

1817, Dec. 9. 15th Cong., 1st sess. By Mr. Barbour of Virginia; read 
twice; to a select com.; reported; considered; postiMued (22 to 9). S. J., pp. 
23, \A, 176, 190, 247, 283; Annals, pp. 21, 22. 

467a. Legislative: Compensation of members of Congress. 

1817, Dec. 16. Resolutions of the legislature of Qeorgia concurring with the 
resolutions of Kentucky. Jour, of Senate of Pennsylvania (1817-18), p. <*467. 

468. Legislative: Election of Representatives. 

469. Execntive: Choice of: Election of electors. 

1817, Dec. 23. 15th Cong., 1st sess. By Mr Dickerson of New Jersey, from 
the legislature of New Jersey; read twice; to a select com.; reported with 
amendments; considered in Com. of the Whole; reported to House; failed 
to pass (20 to 13). 8. J., pp. 48,49.51,119,138,149,152,157,192,208,210,212,214,220, 
214,220; Annals, pp. 65, 67, 176, 229, 242; nonconcurred in by the legislatures of 
Mississippi and Ohio. Jour, of House of Rep. of Pennsylvania (1818-19), pp. 35, 
145. 

470. War: Power of the General Government to train militia. 

1818, Jan. 9. 15th Cong , 1st sess. By Mr. Harrison of Ohio. To Ck>m. of the 
Whole. H. J., p. °128; Annals, p. 611. 

471. Legislative: Election of Representatives. 

472. Executive: Choice of: Election of electors. 

1818, Jan. 19. 15th Cong., Ist sess. By Mr. Macon of North Carolina, in the 
Senate, from the legislature of North Carolina, concurring in resolution pro- 
posed by New Jersey, to select a com. on same subject; reported with 
amendment. Annals, pp. 114, 136; Jour, of Senate of Pennsylvania (1817-18), 
pp. "224-225. Resolutions of (Georgia and Ohio nonconcur ring. Ibid., pp. "466- 
487; Ibid. (1818-19), pp. "91-92. 

473. Legislative: Compensation of members of Congress. 

1818, Feb. 6. 15th Cong., 1st sess. By Mr. Campbell of Tennessee; in Sen- 
ate, from the legrislature of Tennessee; received and entered by vote of 19 to 
14. Annals, p. 170; Jour, of Senate of Pennsylvania (1817-18), p. "279. 

474. Personal Relations: Slavery prohibited. 

1818, Apr. 4. 15th Cong., 1st sess. By Mr. Livermore of New Hampshire; 
read ;^motion to consider failed. H. J., pp. "420-421; Annals, pp. "1675-1676. 

475. Execntive: 1. Veto abolished, 

476. Jndiciary: 2. Appointed by Congress. 

477. Execntive Officers: 8. Choice of Cabinet officers by Congress. 

478. Judiciary and Executive Officers: 4. Vacancies, etc, 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 335 

479. Executive Officers: 6. Exclusion of members of Congress. 

1818, Apr. 16. 15th Cong.flst 8688. By Mr. Lewis of Virginia; read; tabled. 
H. J., pp. H78-479; Annals, pp. "1744-1746. 

480. Territorial: District of Colombia. 

1818, Nov. 17. 15th Cong. , 2d sess. By President Monroe in his third annual 
message. A somewhat blind clause that might mean an amendment. States- 
man's Manual, p. 411. 

480a. Legislative: Election of Representatives by districts. 
480b. Executive: Choice of: Election of electors by districts. 

1818, Nov. 11. Resolutions of the legislature of Vermont. Jour, of Senate of 
Pennsylvania (1818-19), pp. «219-220. 

481. Legislative: Election of Representatives by districts. 

482. Executive: Choice of: Election of electors by districts. 

1818, Nov. 25. 15th Cong., 2d sess. By Mr. Sanford of New York, in the 
Senate, from the legislature of New York, a r^iolntion indorsing the resolu- 
tion of North Carolina; read. Annals, pp. *>23, ZL 

483. Legislative: Election of Representatives by districts. 

484. Executive: Choice of: Election of electors by districts. 

1818, Nov. 25. 15th Cong., 2d sess. By Mr. Storer of New Hampshire, in the 
Senate, from the legislature of New Hampshire, resolution indorsing reso- 
lutions of the general assembly of New Jersey; read. Annals, pp. *>2i-25. 

*485. Choice of Elxecutive: Election of electors. 

486. Legislative: Election of Representatives by districts. 

1818, Dec. 2; 1819, Feb. 3. 15th Cong., 2d sess. By Mr. Dickerson of New 
Jersey; read twice; to a select com.; reported with amendments; considered 
in Com. of the Whole, and was amended; passed to third reading; vote recon- 
sidered; to a select com.; reported with amendments; considered in Com. of 
the Whole; recommitted; considered; passed to third reading, and x>a88ed 
(28 to 10). 

1819, Feb. 5-28. Received by the House; read twice; to Com. of the Whole; 
Com. of the Whole discharged from further consideration by vote of 79 to 73. 
S. J., pp. 45, 54, n, 82, 118, 128, 144, 149, 153, 166, 1«2, 180, 193, 200, 206. 212, 216, 221; 
H. J., pp. 232, 233, 820; Annals, pp. 33, 39, 139, 174, 190, 197, 208, 207, 1088, 1420. 

487. Legislative: Ejection- of Representatives by districts. 

488. Executive: Choice of: Election of electors by districts. 

1818, Dec. 7. 15th Cong., 2d sess. By Mr. Doggett of Connecticut, in the 
Senate, from the legislature of Connecticut; read. Annals, p. *>42. 

488a. Legislative: Election of Representatives by districts. 
488b. Executive: Choice of: Electors by districts. 

1819, Feb. 18. Resolution of the legislature of Massachusetts. Resolves of 
Massachusetts. Vol. xv, pp. "706-707. 

*489. Executive: Choice of: Election of electors. 

490. Legislative: Election of Representatives by districts. 

1819, Dec. 4; 1820, Jan. 27. 16th Cong., 1st sess. By Mr. Dickerson of New 
Jersey; read twice; to select com.; reported; ordered to a third reading; 



1820, Jan. 28- April 20. Received by the House. Read twice; to Com. of the 
Whole; considered in Com. of the Whole; reported; House refuse to con- 
sider. S. J., pp. 25,28,126,127; H. J., pp. 179, 345, 380, 436; Annals, pp. 22, 24, 40, 
233,278,992,1691. 

491 [489] [490] . Executive and legislative: Election of. 

Attempt to amend by Mr. Lloyd in the Senate; lost, 12 to 30. S. J ,p, ^125. 



336 AMERICAN HISTORICAL ASSOCIATION. 

492. Finance: Congress prohibited from establishing a national bank 
except in District of Columbia. 

1820, Jan. 5. 16th Cpng., Ist sess. By Mr. Lowrie of Pennsylvania, in the 
Senate, from the legislature of Pennsylvania (passed March IS7, 1819) ; read 
Annals, p. °70. Jonr . of the Honse of Repr^ntatives of Pennsylvania ( 1818-19). 
pp. «»a00,341, 691, 757, 785, 767; Senate Jour, of Pennsylvania (1818-19), p. 525. For 
replies of other States, ante, p. 256, note 4. 

402a. Finance: Congress prohibited from establishing a national bank 
except in District of Columbia. 

1819, Nov. 29. Resolutions of the general assemhly of Tennessee concurring 
with resolutions of the legislature of Pennsylvania. Jour, of House of Rep- 
of Pennsylvania (1820-21), p. °87. 

493. Executive officers: Members of Congress excluded. 

1820, Jan. 24. 16th Cong., 1st sess. By Mr. Cobb of Georgia; read twice; to 
Com. of the Whole; considered in com.; amended; reported; considered; 
on motion to pass third reading, failed (72 to 87). H. J.,pp.°166,171,345,384, 
414; Annals, pp. 1691, 1859. (See article in Niles' Register, Vol. xviii, pp. 137- 
138.) 

494. Finance: Congress prohibited from establishing national banks 
except in District of Columbia. 

1820, Jan. 28. 16th Cong., 1st sess. By Mr. Noble of Indiana, from the legis- 
lature of Indiana, a resolution concurring in resolution of legislature of 
Pennsylvania; read. Annals, p. °258. 

495. Finance: Congress prohibited from establishing banks except in 
District of Columbia. 

1820, Jan. 31. 16th Cong., Ist sess. By Mr. Baldwin of Pennsylvania; read; 
to Com. of the Whole, S. J. . p. °184; Annals, p. "1022. See No. 492. 

496. Finance: Congress prohibited from establishing banks except in 
District of Columbia, 

1820, Feb. 16. 16th Cong., Ist sess. By Mr. Trimble of Ohio, in the Senate, 
from the legislature of Ohio, a resolution concurring with the resolution of 
the legislature of Pennsylvania; read. Annals, p. 417. Jour, of Senate of 
Pennsylvania (1819-20), pp. ^28^-284. 

497. Executive: Choice of: Election of electors. 

498. Legislative: Election of Representatives. 

1820, Nov. 20. 16th Cong., 2d sess. By Mr. Smith of North Carolina; read 
twice; to Com. of the Whole; considered in Com. of the Whole; reported; 
passed to third reading; postponed; failed to pass (92 to 54). H. J., pp. 23, 24, 
36,62,56,1?^; Annals, pp. 459. oOi, 967. (See article in Niles' Register, Vol.xix. 
p. 195. ) Resolution of North Carolina nonconcurred in by legislature of South 
Carolina. See Resolves of Massachusetts, Vol. xvi, p. 118. 

499. Legislative: Election of Representatives by districts. 

500. Executive: Choice of: Election of electors. 

1820, Nov. 22. 16th Cong., 2d sess. By Mr. Dickerson of New Jersey; read 
twice; to a select com. ; reported with amendments; rei)orted inexpedient to 
amend; considered in Com. of the Whole; tabled. S. J., pp. 25, 27, 145, 230; 
Annals, pp.32, 23, 256, 257. 

501. Judiciary: Appeal to Senate when a State is a party. 

1821, Dec. 12. 17th Cong., 1st ses.s. By Mr. John.son of Kentucky; read 
twice: considered in Com. of the Whole; tabled. S. J., pp. 25, 68, 06, 72, 86, 117, 
134, 184, 199; Annals, pp. "'23-25, 68-JI2, 96-114. 

502. Legislative: Choice of Representatives by districts. 

503. Executive: Choice of. 

1821, Dec. 15. 17th Cong., Ist sess. By Mr. Whitman of Maine: read twice; 
to Com. of the Whole. H. J. , pp. ''ott, 63; Annals, pp. «551-552, 553. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 337 

504. Legislatiye: Api>ortionment: Limit number of Representatives to 
two hundred. 

1821, Dec. 18. 17th Cong., Ist eeaa. By Mr. Barbour of Virginia; read 
twice; considered in Com. of the Whole; postponed indefinitely. 8. J., pp. 90, 
3S» 80, 138, 183; Annals, p. 28-20, 33, 286. NUes' Register, Vol. xxi , p. <>268. 

*605. Legislative: Choice of Representatives. 

506. Executive: Choice of: Election by districts, etc. 

1821, Dec. 19; 1822, Mar. 11. 17th Cong., Ist sess. By Mr. Dickerson of New 
Jersey; read twice; considered in Coin, of the Whole; referred to select 
com. of five; report of com. with amendment; considered in Com.^f the 
Whole, and com. amendments disagreed to and others made. Reported to 
the Senate; amended; read third time, and passed (20 to 11). 

1822, Mar. 11-12. Receiven in the House; read twice; to Com. of the Whole. 
8. J., pp. 82, Si, 36, 72, 78, 80, 125, 168, 173, 179. H. J. , pp. 338, 341. Anhals, pp. 88, 34, 
36, 116-125, 156, 197, 281, 283, 1240, 1250, 1200. 

506a. Finance: National banks prohibited, save in District of Columbia. 
506b. Executive: Choice of: Uniform mode of election by districts. 
506c. Legislative: Choice of Representatives by districts. 

1821, Dec. 20. 17th Cong., 1st sess. By Mr. Thomas of Illinois, in the Senate, 
from the legislature of Illinois, resolution concurring in resolution of the 
legislatures of Pennsylyania and Vermont; read. Annals, p. 85. Jour, of 
Senate of Pennsylvania (1820-21), p. »715. 

507. Ezecntive: Choice of: Officeholders ineligible, age qualification. 

1822, Jan. 10. 17th Cong., 1st sess. By Mr. Woodson of Kentucky; read; 
tabled. H. J.,p.nd6; Annals, p. 602. 

508. Commerce: Bankruptcy, effect of State acts. 

1822, Mar. 12. 17th Cong., 1st sess. By Mr. Walworth of New York; read 
twice; to Com. of the Whole. H. J., pp., <>340-^l, 355; Annals, pp., °1268, 1308. 

508a. Judiciary: Removal of judges by joint address of Congress. 

1822, Jan. 15. By Mr. Holmes of Maine, as amendment to No. 501; read. 
Annals, p. <* 114. 

500. Elzecutive: Choice of: Division of United States into '* Presidential 
sections.'* 

1822, A'pr. 27. 17th Cong. , 1st sess. By Mr. Montgomery of Kentucky. H. J., 
pp.,«602<608; Annals. pp., ^'1700-1701. 

510. Legislative: Compensation of Representatives. 

511. Executive Officers: Members of Congress excluded. 

1822, Apr. 30. 17th Cong., Ist sess. By Mr. Blair of South Carolina; read 
twice; titbled. H. J.,p.<>519; Annals, p. °1752. 

512. Legislative: Compensation of members of Congress. 

1822, May 1. 17th Cong., 1st sess. By Mr. Conkllng of New York; read; 
tabled. H. J. , p. °533; Annals, p. «1768. 

513. Legislative and Executive: Compensation fixed decennially. 

1822, May 2. 17th Cong., 1st sess. By Mr. Fuller of Massachusetts; read; 
tabled. H. J.,pp.<'542-543; Annals, p. °1777. 

514. Commerce: Internal improvements. 

1822, Dec. 3. 17th Cong., 2d sess. By President Monroe in his sixth annual 
message; also May 4, 1822, in a special message. Statesman's Manual, p. 447. 

515. Commerce: Internal improvements. 

1822, Dec. 11. 17th Cong. , 2d sess. By Mr. Talbot, a motion to refer that part 
of President's message to a select com. S. J., p. 26; Annals, pp. *'27, 29. 

H, Doc. 353, pt 2 ^22. 



338 AMERICAN HISTORICAL ASSOCIATION. 

516. Ezecntive Offices: Ineligibility of Presidential electors. 

1923, Jan. 6. 17th Cong., 2d boss. By Mr. Smyth of Virginia; read twice; 
to Com. of the Whole. H. J.,p.nOB,105; Annals, pp. "489, 508. 510. 

517. Executive: Choice: By electors, case of no majority. 

1828, Jan. 10. 17th Cong.. 2d seas. By Mr. Taylor of Virginia; read 
twice ; to a select com. ; a new draft. Snbetitute presented by Messrs. Dicker- 
son and Holmes; considered. 8. J., pp. 78, 85, 111, 117, 146, 151, 163, 171, 178; 
Annals, pp. °101, 105. 107; «»158, "176, IM, 206, "SSS, 228, 266. 

518. Legislative: Choice of Representatives by districts. 

519. Executive: Choice. 

520. Executive: Choice: No third term. 

1823, Jan . 90. 17th Cong. , 2d sess. By Mr. Dickerson of New Jersey, as a sub- 
stitute to Mr. Taylor's; read. S. J., p. 117; Annals, pp. <'176, 194, 206. 

521. Executive: Choice: Decision of contests. 

1823, Feb. 11. 17th Cong., 2d sess. By Mr. Holmes of Maine, as an amend- 
ment to Mr. Taylor's ; read. S. J. , p. 146; Annals, pp. <'223, 2S8, 254, 266. 

522. Commercial Powers: Internal improvements. 

1823, Jan. 15. 17th Cong., 2d sess. By Mr. Beid of Georgia; read; refused 
to consider. H. J. , pp. <*132, *>147; Annals, p. <^627. 

523. Commercial Powers: Internal improvements. 

1823, Feb. 11. 17th Cong., 2d sess. By Mr. Smith of Maryland; read twice; 
considered in Com. of the Whole. S. J. , pp. 144, 160, 208; Annals, pp. »200, 227. 280. 

524. Executive: Choice: By districts. 

525. Legislative: Choice of Representatives by districts. 

1823, Dec. 5. 18th Cong., Ist sess. By Mr. McDuffle of South Carolina, that a 
select com. be appointed to inquire; appointed. Mr. McDuffle reports for 
com. a resolution to amend; read twice; to Com. of the Whole. H. J.,p.83; 
Annals, p. ^866. 

526. Executive: Choice: Direct vote by districts. 

1823, Dec. 11. 18th Cong., 1st sees.. By Mr. Benton of Missouri; read 
twice; considered in Com. of the Whole; referred to com. and reported. 
S. J., pp. 34, 87, 41, 42, 46, 86; Annals, pp. °dSt, 36, 44, °100-102. 

527. Executive: Choice: Case of no majority. 

1823, Dec. 15. 18th Cong., Ist sess. By Mr. Hayne of South Carolina; read 
twice; to select com.; report of com. S. J., pp. 40,-46, 86; Annals, pp. o41, 44. 
100, 102. 

528. Legislative: Choice of Representatives. 

529. Elxecutive: Choice: By districts, etc. 

1823, Dec. 16. 18th Cong., 1st sess. By Mr. Dickerson of New Jersey; read 
twice; to a select com.; report of com. considered in Com. of the Whole; 
Indefinitely postponed . S. J. , pp. 44. 86, 05, 104, 121, 124, 142, 145, 148, 150, 168, 177, 
196,222,24l,2i3,244; Annals, pp. °43, 108, 116, 130, 133, 160, 165, 167. 

530. Executive: Choice: Decision of contests. 

1823, Dec. 16. 18th Cong., Ist sess. By Mr. Holmes of Maine; read twice; 
to a select com. ; report of com. S. J., pp. 44, 86; Annals, p. ®44. 

581. Executive: Choice: Case of no majority. 

1823. Dec. 29. 18th Cong., 1st sess. By Mr. Mills of Massachusetts; read 
twice; to select a com.; report of com. S. J., pp. 61, 86; Annals, pp. <>64i 74. 

532. Executive: Choice: Election of electors by districts. 

1823, Dec. 29. 18th Cong., Ist sess. By Mr. Van Buren of New York; read 
twice; to a select com.: report of com. 8. J., pp. 61, 86, 89, 95; Annals, pp. 
»78, 74. 

533, Legislative: Choice of Representatives by districts. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 339 

534. Execntive: Choice of electors by districts; no third term. 

1804, Jan. 8. 18th Congf., 1st sese. By Mr. Benton of Miasoaii, from tlie 
select com. to which the several propositions were referred; read and con- 
sidered. S. J., pp. 86» 05, 104, 121, m, 142, 146, 148, IfiO. 168, 177, 196, 2», 241, 248, 244; 
Annals, pp. «9»-100, 106, 116, 130, 133, 160, 166, 167. 

*585. Execntive: Choice; no third term. 

1824, Jan. 9-80. 18th Cong., 1st sees. By Mr. Benton of Missouri, from the 
select com.; read twice; considered; read third time, and iMSsed Senate (36 
to 8.) 

Jan. 30. Received in the House; read twice; to Com. of the Whole. 8. J., 
pp. 80, 95, 104, 105, 124, 142, 148; H. J., pp. 187, 191; Annals, pp. 103, 110, 164, 150, 160. 

536. Commercial Powers: Internal improvements. 

1824, Jan. 22. 18th Cong., 1st sees. By Mr. Van Buren of New York; read 
twice; considered in Com. of the Whole. S. J., pp. 124, 128 137; Azmals, pp. 
"136, 138, 161. 

687. Execntive: Choice of, by districts. 

1824, Jan. 24. 18th Cong., 1st sess. By Mr. Livingston of Louisiana; received 
and tabled. H. J., p. 171; Annals, p. °1179. 

588. Commerce: Importation or ingress of persons of color. 

1824, Feb. 6. 18th Cong., 1st sess. By Mr. Abbott of Georgia, from the legis- 
lature of Oeorgia (Dec. 22, 1823); read twice; to Com. of the Whole. H. J., 
p. ^'206; Annals, p. ^1390. Disapproved by the legislature of Vermont (1825). 
Massachusetts Archives. Senate Misc., *V**; alsoby the legislatures of Maine, 
Ohio, New Jersey, Indiana, Connecticut, Delaware, and Kentucky, Jour, of 
Honseof Bep. of Penn. (1823-24), pp. 830,947; Ibid. (1824-25), pp. 826, 408; Jour, of 
Senate of Penn. (1825-26), pp. 41, 42. 146, 264. 

588a. Commerce: Importation or ingress of persons of color. 

1826, Jan. 80. Resolution passed by the legislature of Louisiana, approving 
the amendment proposed by the legislature of Georgia. Massachuaetts 
Archives. Senate Misc., *^*. Journal of Senate of Pennsylvania (1826-26), 
p. "478. 

538b. Commerce: Importation or ingress of persons of color. 

1825, Jan. 22. Resolutions of the legislature of Missouri concurring with the 
resolutions of the legislature of Georgia. Jour, of Senate of Pennsylvania 
(1824-25), p. 0736. 

538c. Commerce: Importation or ingress of persons of color. 

1826, Jan. 28. Resolutions of the legislature of Mississippi concurring with 
the resolutions of the legislature of Georgia. Jour, of Senate of Pennsylvania 
(1824-25), p. «557. 

539. Executive: Choice of. 

1824, Dec. 30. 18th Cong. , 2d sees. By Mr. Strong of New York, in the House. 
Debates, p. ''lOl. 

540. Executive: Choice of: Electors by districts. 

1825, Jan. 4. 18th Cong., 2d sess. By Mr. Saunders of North Otrolina; read 
twice; to Com. of the Whole. H. J., pp. <*108, 1(M; Debates, pp. <> 128-120. 

541. Executive: Choice of , directly by districts. 

1825, Mar. 1. 18th 0>ng.,2d sess. By Mr. McDuffle of South Carolina; read; 
tabled. H. J., pp. «287-288. 

541a. Executive: Choice of, directly by districts. 

541b. Executive Offices: Members of Congn^ess excluded. 

1826, Nov. 26. Resolutions of the general assembly of Tennessee. Niles' 
Register, Vol. XXIX, pp. 360, 420; Massachusetts Archives. Senate, *V». Jour, 
of Senate of Pennsylvania (1825-28), pp. °150-160. Disapproved of by the leg- 
islatures of Indiana (Jan. 20, 1826) and Maine (Feb. 17, 1826). Massachusetts 
Archives. Senate, "V*. *^*' Jour, of Senate of Pennsylvania (1826-20), pp. 
864, 300: Vermont nonooncurred, Ibid. (1826-27), p. 100. 



340 AMEBICAN HISTORICAL ASSOCIATION. 

543. Executive: Choice of, directly by districtB, not to devolve upon 
Congress. 

1836, Dec. 9. 19th Cong. , Ist b«88. By Mr. McDnffle of South Carolina; read ; 
to Com. of the Whole; com. report at various times that they have not 
agreed; com. ordered to report a resolution; com., unable to agree "cm a 
specific plan," is discharged. H. J.,pp. *3a, 282, 284, 387, Jf76, 288, 290, 306, 818, 322, 
324, 326, 340, 342, 371, 375, 387, 389, 892, 395, 400, 410. 

543. Commercial Powers: Internal improvements: National university. 

1825, Dec. 13. 19th Cong., Ist sess. By Mr. Bailey of Massachusetts; read. 
H. J., pp. 047-48; Debates, pp. »801-802. 

544. Executive Officers: Members of Congress excluded. 

1825, Dec. 13. 19th Cong., 1st sess. By Mr. Mitchell of Tennessee. H. J., 
pp., *'o0,309. 

544a. Executive: Choice of, directly, not to devolve upon Congress. 

1825, Dec. 14. By Mr. Benton of Missouri; motion to appoint select com.; 
Mr. Hayne proposed amendment; Mr. Macon's amendment agreed to. &. J., 
pp. «'40,46; Debates, pp. "16, ^W. 

*545. Executive: Choice: No third term. 

1825, Dec. 19-1826, Apr. 8. 19th Cong., Ist sess. By Mr. Dickerson of New 
Jersey; read twice; to a select com.; report of com. with amendment con- 
sidered; amendment of com. concurred in; read third time; passed Senate 

(32 to 7). 

1826, Apr. 4-*. Received in the House; read twice; to Com. of the Whole. 
S. J., pp. 46, 54, 102, 110, 199, 213, 216, 280, 221, 222; H. J., 412, 414; Debates, pp. 
<'19, 374, 875, 876, 377, 405, 406, 407, 412, 414. 

546. Executive Offices: Members of Congress excluded. 

1825, Dec. 19. 19th Cong., Ist sess. By Mr. Cobb of Georgia; read twice; 
considered; tabled. S. J., pp. 47, 54, 165, 200, 227, 318; Debates, pp, ol», oU4, 701 

546a. Commercial Powers: Internal improvements. 

1825, Dec. 20. 19th Cong., lat sess. By Mr. Van Buren of New York; for a 
select com. to prepare and report an amendment. S. J., p. 60; Debates, pp. 
020^. 

547. Executive: Choice: Election directly by district. 

1826, Dec. 29. 19th Cong., Ist sess. By Mr. Cook of niinois; read twice; to 
select com. H. J., pp. °108, 309, 410; Debates, p. o886. 

548. Executive: Choice, by direct vote by districts. 
649. Executive offices: Members of Congress excluded. 

1826, Jan. 8. 19th Cong., Ist sess. By Mr. White, in Senate; by Mr. Cocke 
of Tennessee in House, from the legislature of Tennessee. S. J., pp. 74, 162; 
H. J., pp. 109,309. See Niles' Register, Vol. XXIX, pp. 815-316. 

550. Executive: Choice of, by direct vote. 

1826, Jan. 4. 19th Cong., 1st sess. By Mr. McManus of New York; referred 
to a select com. with other resolution. H. J., pp. °115, 809, 410. 

551. Executive: Choice of. 

1826, Jan. 11. 19th Cong., Ist sess. By Mr. Phelps of Connecticut; read. 
H. J., pp. °141, 809, 410; Debates, p. o940. 

552. Executive: Choice of, by direct vote by districts, 

1826, Jan. 19. 19th Cong., Ist sess. By Mr. Benton of Missouri, from the 
select com.; read twice; considered in Com. of the Whole; amendment pro- 
posed by Mr. Dickerson. S. J., pp. 102, 120, 195, 309; Debates, pp. 052-63, <W2, 
603. Report of com. printed in Niles' Register, Vol. xxix, pp. 887-347. 

663. Legislative: Election of Senators by the electors. 

1826, Feb. 14. 19th Cong., Ist sess. By Mr. Storrs of New York; read; tabled. 
H. J., pp. •258,809; Debates, p. n34B. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 341 

554. Execntiye: Choice of, by direct popular vote; plurality only shall 
be necessary. 

18S6, Feb. 1ft. 19th Cong., let sefls. By Mr. Oanifley of New York; read; 
to Oom. of the Whole; to a seleot oom. H. J., pp. °fBSli^ a09, 410; Debates, 
pp. 'ISTT-iaTB. 

555. Execntiye: Choice of, in no case by Honse of Bepresentatiyes. 

laSO, Feb. 20. 19th Ck>ng., Itst seas. By Mr. Baohanan of PennsylTanla; 
referred to Ck>m. of the Whole. H. J., pp. o278, a09, 410; Debates, p. «U1& 

556. Executive: Choice of: Choice of electors by districts. 

1886, Feb. 20. 19th Cong., Ist seas. By Mr. Doraej of Maryland; referred 
to Oom. of the Whole. H. J., pp. ^274, aoo, 410; Debates, p. <>1418. 

557. Execntiye Offices: Exclusion of Bepresentatiyes when election of 
President deyolyee upon the Honse, etc. 

1808, Feb. 21. 19th Cong., Ist seas. By Mr. Powell of Virginia; read; to 
Com. of the Whole. H. J., pp. ^STT, 309, 410; Debates, p. <>1419. 

558. Execntiye: Choice, by direct yote. 

1820, Feb. 2S. 19th Cong., Ist seas. By Mr. Boon of Indiana; to Com. of 
the Whole. H. J., pp. '>2Si, 800, 410; Debates, pp. ol428-1420. 

65t). Execntiye: Choice: Vote directly: State ratio retained; case of sec- 
ond election. 

1888, Feb. Sa 19th Cong., Ist seas. By Mr. Haynes of Georgia; read; to 
Com. of the Whole. H. J., pp. '*281. 809, 410; Debates, p. ol429. 

560. Execntiye: Choice: Vote directly: State ratio retained. 

IgSM, Feb, 24. 19th Cong., Ist seas. By Mr. Thomson of Pennsylvania; 
read; to Com.. of the Whole. H. J., pp. <>286, 309, 410; Debates, p. <>1488. 

561. Execntiye: Choice: States to prescribe method of choice of electors; 
qualification of age; one term of six years. 

1888, Feb. 24. 19th Cong., 1st seas. By Mr. Hemphill of Pennsylvania; 
read; to Com. of the Whole. H. J., pp. o288, 809, 410; Debates, p. «1482. 

562. Execntiye: Choice; by a general per capita yote. 

1886, Feb. 24. 19th Cong. , let seas. By Mr. Sloane of Ohio; referred to Com. 
of the Whole. H. J., pp. <>287, 809, 410; Debates, p. <'1468. 

563. Execntiye: Choice. 

1826, Feb. 24. 19th Gong., 1st sess. By Mr. Ward of New York, for a Joint 
com. to consider whether an amendment ought to be made; if so, to report; 
read; tabled. H. J., pp. o287, 809, 410; Debates, p. <*14e3. 

564. Execntiye: Choice of: President ineligible for six years. 

565. Execntiye: Choice of: Uniform system of yoting by districts for 
electors. 

566. Execntiye: Choice of: Plurality yote of electoral college shall elect; 
yiya yoce yote when election deyolyee upon Congress. 

567. Execntiye offices: Members yoting excluded. 

1828, Feb. 24. 19th Cong., 1st sess. By Mr. Weems of Maryland; to Com. 
of the Whole. H. J., pp. 0287-288,809,410; Debates, pp. 01468-1464. 

568. Elxecutiye: Choice by direct yote of the people. 

1826, Feb. 24. 19th Cong. , Ist sees. By Mr. Livingston of Lonisiana; to Com. 
of the Whole. H. J., pp. «288,809, 410; Debatea, p. <'1464. 

569. Execntiye offices: Exclusion of members of Congress. 

1826, Mar. 1. 19th Cong., 1st sess. By Mr. Benton of Mlssonri, from the 
select com.; read and considered. S. J., pp. 166,200,227,818; Debates, p. <>114. 

570. Execntiye: Choice by direct yote of the people. 

1826, Mar. 7. 19th Cong., let sess. By Mr. KeUogg of New York; to Com. 
of the Whole. H. J., pp. •819-320, 410; Debatea, p. "ISU. 



342 AMERICAN HISTORICAL ASSOCIATION. 

571. Amendment: Amendments only to be proponed decennially. 

ia9B, Mar. 8. 19tli Cong., Ist seas. By Mr. Herrick of Maine; read twice; 
tabled. H. J... pp. 0323,325; Debates, p. 15M. 

572. Execntiye: Choice by popular vote directly. 

1&36, Apr. 3. 19th Cong. , 1st seas. By Mr. Livingston of Lonisiaaa; referred 
to select com. H. J., p. *'400; Debates, p. "2007. 

573. Executive: Choice: Case of no election. 

1806, Apr. 3. 19th Cong., 1st sees. By Mr. Stevenson of Virginia; referre<I 
to select com. H. J., p. "410: Debates, p. '»*M07-a008. 

574. Executive: Choice: Case of no election. 

1806, Apr. 4. 19th Cong., Ist sess. By Mr. Drayton of Sooth Carolina; re- 
ferred to select com. H. J., p. Hli; Debates, p. <'9010. 

575. Judiciary: Limiting the age of judges. 

1836, Apr. 7. 19th Cong., Ist sess. By Mr. Eastman of New Hampshire. 
H. J., p. "430; Debates, p. «a098. 

576. Legislative: Choice of Representatives by districts. 

577 [552]. Executive: Choice, by districts, etc. 

1836, May 8. 19th Cong., 1st sesa By Mr. Dickerson of New Jersey, as an 
amendment to resolution of the select com. of Jan. 19. S. J., p. 309; Debates,- 
p.«»e92. 

577a. Executive: Election not to devolve upon House of Representa- 
tives. 

1836, Dec. 22. Resolution of the legislature of Qeorgia. Copy in Massa- 
chusetts Archives. Senate, 'V'- Jour, of Senate of Pennsylvania (1806-27)^ 
pp. °38&-884; nonconcurred in by Vermont. Jour, of House of Rep. of Penn. 
(1837-38), p. »730. 

578. Executive: Choice, by direct vote, in case of no election by electors. 

1837, Feb. 30. 19th Cong. , 3d sess. By Mr. Wright of Ohio, from the general 
assembly of Ohio; tabled; to Com. of the Whole. H. J., p. 817; 20th Cong., 
^ sess., H. J., p. 75. 

579. Executive: Choic-e: One term only. 

580. Executive: Choice: Provision in case of no majority. 

581. Executive Offices: Members of Congress excluded. 

1827, Dec. 19. 20th Cong., 1st sess. By Mr. Smyth of Virginia. H. J., 
pp. «'7()-71. 

581a. Executive: Election directly and conclusively by the people. 

1827, Oct. 20. Resolution of the legislature of Tennessee. Niles' Register, 
Vol. XXXIII, pp. 161. 0183-186, 186, 198. Am. An. Reg., VoL in; (Looal Hist.) 
p. 152. 

582. Executive: Choice: Not to devolve on Congress in any case; by a 
direct popular vote by districts; the electoral ratio of States retained. 

1827, Dec. 19. 20th Cong., Ist sess. By Mr. McDuffie of South Carolina; 
referred to Com. of the Whole. H. J., p. "71-72. 

588. Executive: Choice, by a direct popular vote by States; not to 
devolve on Congress. 

1828, Feb. 4-5. 20th Cong. , Ist sess. By Mr. Moore of Alabama, in the House , 
and by Mr. King of Alabama, in the Senate, from the legislature of Alabama; 
tabled. H.J.,p.o246; S. J., p. 134. 

584. Executive: Choice, by general ticket. 

1828, Feb. 15. 20th Cong., 1st sess. By Mr. Whipple of New Hampshire; 
to Com. of the Whole. H. J., p. °d03. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 343 

585. Ezecntive: Choice: Election of President as the legislatures of 

States shall direct; case of no choice. 

1828, Feb. 16. Stth^Cong., Ist Hefls. By Mr. Tacker of South Carolina; to 
Com. of the Whole, H. J . , pp. 0304-305. 

586. Finance: Treasury officers not to be appointed by the President. 

1828, Mar. SS. dOth Cong., 1st seas. By Mr. Barbour of Virginia; consid 
ered; to Com. of the Whole. H. J., p. ^ISB, i^j U», 447; Debates, p. 1954, li»5. 

587. Personal Relations: Prevention of duelling. 

1828, May *M. 20th Cong., 1st seas. By Mr. Long of North Carolina; read 
and tabled. H.J.,p.o880. 

588. Ezecntive: Choice: One term only. 

1828, Dec. 18. 20th Cong., 2d seas. By Mr. Smyth of Virginia; report of 
com. considered. Mr. Smyth moved an amendment; considered; tabled. 
H. J., pp. 78, 154,250,251,252,255,260,267,270,27^,286,206,908,311; Debates, p.^llO. 

589 [588]. Executive: Choice: One term only. 

1829, Feb. 6. 20th Cong., 2d seas. By Mr. Weems of Maryland, an amend- 
ment to Mr. Smyth's reeolution. H. J., p. ®260; Debates, p. 322. 

590 [588]. Executive: One term, six years. 

1829, Feb. 7. 20th Cong. , 2d sess. By Mr. Condict of New Jersey, as an 
amendment to Xo. 588. H. J., p. <'259; Debates, p. 322. 

591 [588]. Executive: Choice: One term, six years. 

592. Executive: Choice, by direct vote; also for electors in case a second 
election is reqtiired. 

593. Executive Offices: Exclusion of members of Congress. 

594. Legislative: Term of Senators, four years, to be chosen as the leg- 
islature shall direct. 

595. Executive Offices: Exclusion of Representatives, when the election 
of President devolves upon House. 

1829, Feb. id, 20th Cong. , 2d sess. By Mr. Wright of Ohio, as an amendment 
to No. 588; tabled. H. J. , pp. O280-281, 2S6, 296, 808, 311 ; Debates, pp. «a62, 371. 

595a. Executive: Choice of: without electors, retaining the relative 
weight of each State: In no case by House of Representatives. 

1829, Jan. 23. Resolntion of the legislature of Missonri. Copy in Massachu- 
setts Archives. Senate, *V*- Jour, of House of Bep. of Penn. (1829-80), pp. 
"124-125. Nonconcurred in by the legislatures of Vermont (Oct. 29, 1820) and 
Connecticut (May, 1880), Massachusetts Archives. Senate, >V*i ^* 

595b. Executive: One term only, six years. 

1829, Feb. 4. Resolution of the legislature of Louisiana. Copy in Massachu- 
setts Archives. Senate, *V^- Replies of the legislatures of Oeorgia, con- 
curring, Jour, of House of Rep. of Pennsylvania (1820-30), p. od44; Maryland 
and Vermont, nonconcurring. S. J., 21st Cong., l«t sess., pp. o9H-09; Kiles' 
Register, Vol. xxvii, p. 428; Am. An. Reg., Vol. vi, p. 822. Jour, of Senate of 
Penn. (1830-81), p. nOO. 

596. Executive: Choice: One term, six years. 

597. Executive Offices: Members of Congress ineligible to. 

1820, Dec 8. 21st Cong., 1st sess. By President Jackson in his first annual 
message. Referred to a select com. in House; report of Com.; read twice; 
to Com. of the Whole. S. J., p. 9; H. J., pp. 15, 31, 242. 

598. Finance: Apportionment of the surplus. 

1820, Dec. 8. 2l8t Cong., 1st sess. By President Jackson in his first annual 
message, proposing an amendment if the measure is not warranted by the 
constitution. Statesman's Manual, p. 705; H. J., p. 19; S. J., p. 13. 



344 AMERICAN HISTORICAL ASSOCIATION. 

599. Division of Powers: Defining power of the Greneral and State gov- 
ments. 

1829, Dec. 21. Slst Cong., 1st seas. By Mr. Hall of North CaroUna, that a 
select com. be appointed to ooosider the expediency of an amendment: 
read; not agreed to «B to 84 ^ H. J., p. <>66. 

600. Executive: Choice of, by direct vote of the people, the ratio of the 
States retained: In no case shall election fall to the House of Rei>- 
resentativee. 

1830, Jan..25-Feb. t 21«t Cong., Ist sees. By Mr. Forsyth of Georgia, in 
Senate; by Mr. Wilde of Qeorgia in the Hoose. Reeolntion of the legislatare 
of (Georgia; read. H. J., p. **237: S. J., p. °98-89. Nonconcnrred in by legisla- 
ture of Vermont. Am. An. Beg., YoL vii, p. 33S. Jonr. of Senate of Pennsyl- 
vania (1830-^), p. « 100. 

600a. Elxecutive: Choice of President and Vice-President. 

1830, Feb. 1. Zlst Cong., Ist sess. By Mr. McDoffle, from Select Com. on 
the President's Message. Bead twice; to Com. of the Whole. H. J., p. 9ti. 

601. Executive: Choice of President and Vice-President. 

1830, Mar. 12. 21st Cong., Ist sess. By Mr. Benton of MisBonri, in harmony 
with President's reconmiendation. Bead twice; to a select com.; reported; 
considered. S. J., pp. 183, 186, 199, 321, 

601a. Ehcecutive: Election of President by direct vote of the people. 

1830, Mar. 16. 2l8t Cong., 1st sess. By Mr. Benton of Miasouri, from the 
legislature of Missonri. S. J., p. 187. 

602. Executive: Choice: One term only. 

1830, Dec. 7. 21st Cong., 2d sess. By President Jackson in his second annnal 
message. H. J., p. 23; S. J., 21; Statesman's Manual, p. 744. 

603. Executive: Choice: One term only. 

1830, Dec. 9. 21st Cong., 2d sess. Beport of the com. to whom this action 
of the President's message was referred; Mr. Tucker's amendment con- 
sidered. H. J., pp. 36, 38, 089-90, 145, 371; Debates, pp. ^'STV, .°408. 

604. Executive: Choice: No third term. 

1830, Dec. ^. 21st Cong., 2d sess. By Mr. Dickerson of New Jersey; read 
twice; to select com.; report; considered; tabled. S. J., pp. 59, 63-76, 88; 
Debates, pp. "23-24. 

605 [604]. Executive: Choice: One term of five years. 

1831, Jan. 5. 2l8t Cong. , 2d sess. By Mr. Tucker, as an amendment to report 
of select com.; read; tabled. H. J., p. "IIS; Debates, p. 408. 

605a. Judiciary: Term of judges. 

1831, Jao. 28. 2ist Cong., 2d sess. By Mr. Leoompte of Kentucky; motion 
to suspend the rules and consider the same. H. J. , p. *'224; Debates, p. **A40, 717. 

606. Executive: Choice: Exclusion of Congressmen: One term only. 

607. Legislative: Apportionment of Representatives. 

1831, Dec. 6. 22d Cong.; 1st sess. By President Jackson in his third annual 
message. H. J., p. **20; Statesman's Manual, p. 764. Com. appointed to con- 
sider the same. H. J., p. 40; Debates, p. 1432. 

608. Judiciary: Term of judges. 

1832, Jan. 30. 23d Cong., Ist sess. By Mr. Lecompte of Kentucky. House 
refuses to consider (127 to 41 ). fl. J., pp. «»253, 406; Debates, p. 01856. 

609. Ebcecutive: Choice, by direct popular vote: State ratio retained: 
President ineligible for next term. 

1832, Mar. 2. 22d Cong., Ist sess. By Mr. Boot of New York; to a select 
com. May 26, 1832, report an amendment—one term only of six years; to 
Com. of the Whole. H. J., pp. •429, 501, 663, 808; Debates, pp. n963, 2164, 2696, 3108. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 346 

609a. Commercial: Internal improvements. 

609b. Personal Relations: Aid colonization of certain nnmber of the 
colored population. 

188S; Jan. 31. 2Sd Cong., 1st sess. By Mr. Archer of Virginia; ordered 
printed; referred to Com. on Rah way Colonization Society MemoriaL H. J., 
p.»272; Debate?, ^leeS, "1675. 

609c. Personal Relations: Colonization of '*Free people of Color." 

1882, Mar. 15. 2SML Cong., Ist Hess. By Mr. Smith of Maryland, from the 
legislature of Maryland. S. J., p. 186; Am. An. Beg., Vol. yit, pp. 231^. 

610. Executive: Choice: Term of office. 
()11. Commerce: Internal improvement. 

188BS, Dec. 4. 2Sd Cong., 2d sess. By President Jackson in his fourth annual 
message. S. J., pp. 15, 17; H. J., pp. 18, 20. 

612. Executive Offices: Members of Congress excluded. 

1882, Dec. 17. 22d Cong., 2d sess. By Mr. Wickliffe of Kentucky; con- 
sidered. H. J., pp. °70, 83, 91; Debates, p. 888-804. 

613. Division of Powers: Call of a convention: Defining x>ower of 
General and State governments. 

614. Division of Powers: Defining power of coercion and right of resist- 
ance by the State. 

615. Finance: Protective tariff, principles to be defined. 

616. Finance: Federal taxation. 

617. Judiciary: Jurisdiction. 

618. Judiciary: Tribunal to settle disputes between General and State 
governments. 

619. Finance: Chartering of bank. 

620. Commerce: Internal improvements. 
631. Finance: Distribution of surplus. 

623. Territorial Power: Distribution of public lands. 
628. Executive: Choice of, by the people. 

624. Executive: Choice of: One term only. 

625. Personal Relations: Rights of Inditms. 

1833, Jan. 9. 22d Cong., 26. sess. Mr. Forsytb of (Georgia presented resolu- 
tion from the legislature of Gheorgia, adopted Dec 12, 1888, making applica- 
tion for a convention to amend the Constitution as designated. S. J., pp. 
•66-66; Am. An. Register, Vol. viii, p. "296. 

625a. Division of Powers: Call of a convention of States. 

1883, Jan. 15. Resolution of the legislature of South Carolina, calling for a 
conyention of the States to consider and determine the disputed ix>wer of 
the General and State goyemments. S. J., p. <'83. 

625b. Amendment: Call of a Federal convention. 

1832. Resolutions of the legislature of Alabama, recommending the call of 
a Federal conyention to propose amendments. Am. An. Register, .Vol. viii, 
p. 2»7. 

626. Ehcecutive: Choice, by the people: One term only. 

1833, Dec. 3. 23d Cong., 1st sess. By President Jackson in his fifth annual 
message. S.J., p.l9; H. J.,p.24. 

627. Executive: Choice of. 

1833, Dec 9. 23d Cong., Ist sess. By Mr. Benton of Missouri; read twice; 
to a select com; com. report a substitute. S. J., pp. 86, 296, 802; Debates, pp. 
20,1879; Globe, pp. 17, 424. 



346 AMERICAN HISTORICAL ASSOCIATION. 

628. ExecntLve: Choice, by the people: In no case to devolye npon the 
House of Representatives. 

1833s Dec. 11. 23d Cong., Ist sees. By Mr. Bibb of Kentucky; read twice; 
to a select com.; reported a sabstitute; tabled. S. J., pp. 99, 268, 278, 286,201, 
a02,Sll; Debates, pp. 1724. 1813, 1848, 1954; Globe, pp. 20, 979, 307, 406, 418, 428. 430. 
(Text of substitute, Niles' Register, Vol. xlvi, p. *'421.) 

629. Execntive: Revoke veto by a majority vote of all Members. 

1838, Dec. 24. 23d Cong., Ist aess. By Mr. Kent; read; tabled. S. J.,pp. 66, 
74; Globe,pp.*'52,73. 

680 [628]. Executive: Choice, by direct popular vote: In no case to devolve 
upon the House of Representatives: Uniform system by districts: 
In case of no majority, a second election by the people. 

1834, June 5. 23d Cong., 1st sess. From the select com. as a substitute for 
Mr. Bibb's resolution. S. J., p. 302; Globe, pp. 418. 428, 489. Nilee' Register, 
Vol.xiiVi,p.'»421. 

631. Executive: Choice: One term only. 

1834, Dec. 2. 23d Cong., 2d sess. By President Jackson tn his sixth annual 
message. Com. appointed to consider; rex)ort unable to agree. H. J., pp. 27, 
66,294; Debates, pp. 1126-1127; Globe, p. 36. 

632. Executive: Choice, by direct i)opular vote, by districts. 

1834, Dec. L5. S.B.3, 23d Cong., 2d sess. By Mr. Benton of Missouri; read 
twice ; tabled. 8. J. , pp. 42, 48, 71, 97; Debates, pp. 216, 217; Globe, pp. 36, 129. 

638. Executive: Choice, by direct popular vote by districts: Election in 
no case to devolve on Congress. 

684. Executive: Choice: One term only. 

685. Executive Offices: Members of Congress excluded. 

1834, Dec. 19. 23d Cong. , 2d sess. By Mr. Hamer of Ohio; referred to select 
com. ; report unable to agree. H. J., pp. <> 110-111, 284; Globe, p. ''52. 

636. Executive: Reverse veto by a majority vote. 

1835, Jan. 6. S. B. 6, 23d Cong., 2d sess. By Mr. Kent; read twice; tabled. 
8. J., pp. 77, 88, 105, 177; Debates, pp. *'540^651; Globe, pp. 96, 108, 280, 270. 

637. Judiciary: Term of judges. 

1836, Jan. 7. 23d Cong., 2d sess. By Mr. Hamer of Ohio; to Com. on Judi- 
ciary for inquiry; amendments proposed; postponed. H. J., pp. ''178, oi86, 
0186, 267; Debates, pp. <'942, 943, 966, 966; Globe, pp. n08. 111. 

638 [637]. Judiciary: Term of judges; age limit. 

1886, Jan. 8. 23d Cong. , 2d sess. By Mr. Hardin, as an amendment to Mr. 
Hamer's resolution. H. J., pp. ** 186-186. 

639 [637]. Judiciary: Removal of judges, etc. 

1835, Jan. 8. 23d Cong., 2d sess. By Mr. Vance of Ohio, as an amendment 
to Mr. Hamer^s resolution; considered. H. J., pp. <* 186-186; Globe, pp. 167, :)04. 

640. Executive: Choice: One term only. 

641. Executive: Choice, by direct x>opular vote by States. 

642. Executive Offices: Members of Congress excluded. 

1835, Jan. 31. 23d Cong., 2d sess. By Mr. Gilmer of Georgia; considered; 
attempt to amend; lost; considered. H. J., pp. «297-299, 377, 378, 460, 463-466, 
471,477; Debates, pp. ni26-1128, 1351, 1497, 1500-1504, 1625-1531; Globe, 181, 292, 3na 

643. Finance: Distribution of surplus revenue. 

1835, Feb. 9. S. R. 11, 23d Cong., 2d sess. By Mr. Calhoun of South Carolina: 
read twice; tabled; to select com.; report considered; tabled. 8. J., pp. 
148,160,200; Globe, pp. 230, 224. 

644 [640-642] . Legislative: Election of Senators by the people. 

1836, Feb. 13. 28d Cong. ; 2d sess. By Mr. Hannegan of Indiana, to l)e added 
to Mr. Gilman's resolution; tabled. H. J., p. °378; Debates, p. 1361. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 347 

645 [640]. Ezectitiye: Choice: One term, six years. 

188S, Feb. 25. 28d Ck)ng., 2d Bees. By Mr. Speierht of North Garolina, as an 
amendment to Mr. Gilmer's reeolntion; rejected. H. J., p. 454; Qlobe, p. 282. 

646. Executive: Choice. 

1885, Dec. 2. 24th Cong., Ist sees. By President Jackson in his seventh 
annnal message. S. J., pp. 81, 32; H. J., p. 86; Globe, p. 10. 

647. Finance: Distribution of surplus revenue. 

1835, Dec. 29. 24th Cong., 1st sess. By Mr. Calhonn of South Carolina, In the 
the Senate. Debates, p. 52. 

646. Executive^ Article 1. Reverse veto by a majority vote. 

649. Executive: Article 2. Independent Treasury Department. 

650. Executive: Article 8. Secretary of Treasury elected by Congress. 

651. Executive Officers: Article 14. Tenure and removal. 

652. Executive Offices: Article 15. Members of Congress excluded. 

1836, Feb. 13, 24th Cong., Ist sess. 8. R. 6. By Mr. Underwood of Ken- 
tucky; read. H, J., pp. °845-846: Globe, p. ''184. 

653. Executive: Choice: One term of six years. 

654. Executive: Choice, by direct vote: Case of no election. 

655. Executive Offices: Members of Congress excluded. 

1886, Feb. 18. B. B. 7, 24th Cong., 1st sess. By Mr. Peyton of Tennessee. 
H. J., pp. 0347-348; Globe, p. 184. 

655a. Executive: Prevent election devolving on Congress. 

1836, Feb. 29. BeeolutionB of the Gtoneral Ass«nnbly of Ohia Journal of the 
Senate of Pennsylvania (188-^36), YoL ii, p. <*374. 

656. Executive: Choice. 

1836, Mar. 30. H. B. 9, 24th Cong., 1st sess. Report of select com. to whom 
President's message was referred; to Com. of the Whole; amendments 
proposed. H. J., pp. 72, 601. Globe, pp. 27, 306, 307. 

657 [656]. Executive: Choice. 

1836, Mar. 30. 24th Cong., Ist sess. By Mr. Dromgoole of Virginia, intended 
as a substitute to H. R. 9; to Com. of the Whole. H. J., p. 601; Globe, p. 306; 
Debates, p. 3016. 

658 [656]. Executive: Choice. 

1886, Apr. 1. 24th Cong., Ist sess. By Mr. Taliaferro of Virginia, as an 
amendment to H. B. 9. H. J., p. 614; Globe, p. 313. 

658a. Executive: Prevent election devolving on Congress. 

1836, Apr. 22. 24th Cong., 1st sess. By Mr. Shepley , resolutions of the legis- 
lature of Maine. S. J., p. 302; Globe, p. 383; Jour, of Senate of Pennsylvania 
(1835-36), pp. 0421-422. 

659. Executive: Choice. 

1836, Dec. 6. 24th Cong., 2d sess. By President Jackson in his eighth annual 
message. S. J., p. 27; H. J., p. 29. 

660. Executive: Choice: One term only of six years. 

661. Executive: Choice, by direct popular vote *' viva voce:" State ratio 
retained. 

662. Eixecutive Offices: Members of Congress excluded. 

1886, Dec 12. H. B. 18, 24th Cong., 2d sess. By Mr. McComas of Virginia; 
consideration postponed. H. J., pp. <'50-62: Globe, p. °20. 

663. Executive: Choice, by direct popular vote: State ratio retained. 

664. Executive: Choice: One term of six years. 

1836, Dec. 29. 24th Cong., 2d seas. By Mr. GkJbraith of Pennsylvania; 
read; to a select com. H. J., pp. <>137-139; Globe, pp. 61, 62. 



348 AMERICAN HISTORICAL ASSOCIATION. 

665. Finance: Issuing of bank notes. 

18B90, Dec. S9. H. B. 27, dith Coxur.. 2A fleas. Resolution to amend referred 
to a select com. on amending Gonstltation. H. J., pp. 137, 140. 

666. Ezecntive: Choice. 

1887, Jan. 28. 24th Cong., 2d sees. Select com., to whom President's message 
was referred, report the H. B. made at last session. H. J., pp. 68, 00, 288, 545; 
Globe, pp. 28, 186; Debates, pp. 1510,1511. 

667. Execntive: Choice: One term only, six years. 

668. £zecutive: Choice: Change time of election and have it uniform. 

669. Executive: Choice, by direct vote: Provision for a second election in 
case of no choice. 

670. Executive Offices: Members of Congress excluded. 

1887, Feb. 24. 24th Cong. , 2d sera. By Mr. Boon of Indiana, from the general 
assembly of Indiana; tabled. H. J. , p. <'520; Globe, p. 262. 

671. Finance: State bank paper. 

1837, Mar. a H.B.28,24th Cong., 2d sess. From the select com. H. J.,p. 
•587; Globe, p. 279. 

673. Executive; Choice, by districts. 

1837, Dec. 1& S.B.I, 25th Cong., 2d sees. By Mr. Allen of Ohio; read and 
referred to a select com. S. J. , p. 50; Globe, p. 17, *'25, 26, 68. 

678. Executive: Reverse veto by a majority. 

674. Choice of Executive: President ineligible for the succeeding four 
years. 

675. Executive: Independent Treasury Department. 

676. Executive: Secretary of Treasury elected by Congress. 

677. Executive Officers: Tenure and removal. 

678. Executive Offices: Members of Congress excluded. 

679. Choice of Executive: Nomination by State legislatures, election by 
direct vote from the list nominated. 

1838, Jan. 2. H.B.I, 25th Cong., 2d sess. By Mr. Underwood of Kentucky; 
read ; tabled; to Com. of the Whole. H. J. , pp. «18e-192, 483; Globe, pp. 190. 

680. Executive Offices: Members of Congress excluded. 

1838, Jan. 2. H. B. 3, 25th Cong., 2d. sess. By Mr. Wise of Virginia, that a 
com. to inquire be appointed; referred to a select com.; com. rei>ort, H. B. 8; 
read ; to Com. of the Whole. H. J. , pp. 105, 255, 256, 818; Globe, pp. ''TO, 92, 184. 

681. Executive: Choice of: One term only. 

1838, Feb. 19. 25th Cong., 2d sess. By Mr.Bhett of South Carolina, in the 
House; read twice. Globe, p. ''ISO. 

682. Executive: Choice: Case of no election. 

1838, Feb. 19. H.B.6, 25th Cong., 2d sess. By Mr.Dromgoole of Virginia; 
read; to Com. of the Whole. H. J. , pp. °471-4T3; Globe, p. •190. 

683. Executive: Choice, by direct vote by States: State ratio retained. 

1838, Feb. 19. H. B. 7, 25th Cong., 2d sess. By Mr. Williams of Tennessee: 
read ; to Com. of the Whole. H. J. , pp. ''475-477. 

684. Executive: Choice: One term only. 

1838, Feb. 19. 26th Cong., 2d sess. By Mr. Bell of Tennessee; tabled. H. J., 
p.'»478; Globe, p. 190. 

685. Personal Relations: Persons connected with a duel excluded from 

office. 

1838, Mar. 5. H.B. 8, 25th Cong., 2d sess. By Mr. Morgan of Virginia; read 
twice. H. J., pp. *'526-627; Globe, p. o2ia Beport of Com. on Duelling, Niles', 
Vol. LIV, pp. 189, 188. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 349 

686. Financo: State bank notes. 

1838, Apr. 16. 25th Ck>ng., 2d sees. By Mr. Oarland of LooisiAxm; tabled. 
H. J.y p. <*764; Globe, pp. «2S0, «311. 

687. Personal Relations: Persons connected with a duel excluded from 
office. 

1838, Dec. 31. 26th Ck>ng., 3d sees. H. B. 32. By Mr. Cnshman of New Hamp- 
shire; read twice. H. J., p. "ISB; Qlobe, p. <*86. 

688. Finance: Any officer embezzling public money excluded from office. 

1838, Dec. 81. 25th Cong., 3d sees. By Mr.Southgate of Eentncky; tabled, 
H. J., p. •ITO; Globe, p. «91. 

689. Legislatiye: Term of Senators four years. One-half Senators retire 
every two years. 

690. Executive: Choice: Term four years: Ineligible to two terms in 
succession. 

691. Executive: Veto power dispensed with. 

692. Executive: Power of removal from office. 

692a. Executive Offices: Removals from office to be regulated by law. 
692b. Executive Offices: Appointment made by the Senate. 
698. Executive: President shall issue commissions. 

1889, Jan. 14. H. R. 38, 26th Ck>ng., 3d sees. By Mr. Taliaferro of Virginia; 
referred to Com. of the Whole. H. J., pp. <'282-JB88; Globe, p. «124. 

694. Elxecutive: One term, four years. 

695. Executive Offices: Appointment of certain officers by Congress. 
096. Elxecutive Offices: Members of Congress excluded. 

1889, Jan. 21. 8. R. 10, 25th Ck>ng. , 3d sess. By Mr. Tallmadge of New York; 
read. 8. J., p. 144; Globe, p. 186; Niles' Register, LV, 3i7. 

697. Personal Relations: Hereditary slavery abolished after 1842. 

698. Territorial: No slave State to be admitted. 

699. Personal Relations: Slavery and slave trade abolished after 1845 in 

District of Columbia. 

1889, Feb. 25. 25th Cong., 3d sess. By Mr. Adams of Maasaohosetts; in the 
House. Objection made to their reception. Qlobe, p. <*218. 

700. Judiciary: Limitation of term to seven years. 

1839, Dec. 80-1840, July 17. S.R.2, 26th Cong., 1st sees. By Mr. Tappaa of 
Ohio; considered; tabled. 8. J., pp.59, 73, 409, 482, 485, 622; Globe, pp.82, «88, 
441,516. 

701. Finance: Prohibition of State bank notes. 

1840, Feb. 24-27. 26th Cong., Ist sess. By Mr. Buchanan of Pennsylvania; 
referred to select com. 8. J., pp. <'108, 206; Globe, pp. <>220, 224. 

702. Elzecutive: Choice: Ineligibility to a second term. 

1840, Feb. 24. H. R. 1. , 28th Cong. , 1st sess. By Mr. Brown of Tennessee; read. 
H. J.,pp.°443, 787; Globe, pp., na2, »223, 307. 

703. Legislative: Reg^ilations for contested elections. 

1840, Mar. 9. 26th Cong., 1st sees. By Mr. Habersham of Georgia; laid 
over. H.J„p.°647; Globe, p. *'353. 

704. Judiciary: Limitation of term of judges. 

1840, Dec. LV21. 8. B. 2, 26th Cong., 2d sess. By Mr. Tappan of Ohio; read 
twice ; considered. 8. J. , pp. 34, 50; Globe, i>p. 18, 41. 

704a. Executive: One term only, four years. 

1840, Dec. 16-21 . S. B. 3, 26th Cong. . 2d sess. By Mr. Tallmadge of New York; 
read twice; tabled. S. J., pp.40, 60; Globe, p. 26; Niles' Register, Vol. r tt , 
p. ''252. 



350 AMERICAN HISTORICAL ASSOCIATION. 

705. Executive: Choice: One term of four years. 

1840, Dec. 17. H. B. 17, d5th Cong. , 2d seas. By Mr. Hnnt of New York; com- 
mitted to Com. of the Whole. H. J., p. <*65; Qlobe, p. <>38. 

70 Legislative: Term to begin December 1. 

1840, Dec. 21. H. B. 18, 26th Cong., 2d aeas. By Mr. Filhnore of New York; 
read twice; committed to Com. of the Whole. H. J.,p. <>87; Globe, p. °44. 

706a. Executive: One term only. 

1841, Jan. 6. 2Bth Cong., 2d sesa By Mr. Phelps of Vermont, from the legis- 
lature of Vermont; read. S. J. , p. 84. Jonr. of Senate of Penn. (1841), Vol. 1 1, 
p. •44. 

706b. Executive: One term only: Uniform day for choice of Presiden- 
tial Electors. 

1841, Jan. 28. 26th Cong. , 2d sess. By Mr. White, from the general assembly 
of Indiana. S. J., p. 128; Massachusetts Archives. Senate, 10619. Jo. of Sen- 
ate of Penn. (1841), Vol. ii,p. °389. 

706c. Executive: One term only. 

1841, Feb. 26. Besolntion of the State of Delaware. Copy in Massachusetts 
Archives. Senate Misc., 10614. 

707. Executive: Choice: One term only. 

1841, June 12. 27th Cong., Iflt sess. By Mr. Randall of Maine, from the 
legislature of Maine ; to Com. on Judiciary. H. J. , p. *^102. 

708. Executive: Choice: One term only. 

1841, June 18. 27th Cong., 1st sess. By Mr. Williams, of Maine, from the 
legislature of Maine; tabled. S.J.,p.°49: Globe, p. 70. 

709. Executive: Choice: One term only. 

1841, June 18. 27th Cong., 1st sess. By Mr. Bates, of Massachusetts, from 
the legislature of Massachusetts; tabled. S. J. , p. 40; Qlobe, p. 70. 

710. Executive: Choice: One term only. 

1841, June 22. 27th Cong., Ist sess. By Mr. Huntington of Connecticut, 
from the legislature of Connecticut; tabled. S. J., p. <>53; Globe, p. 88. 

711. Executive: Choice: One term only. 

1841, June23'Sept. 10. 27th Cong., Ist sess. By Mr. Brown of Tennessee; 
read; considered. H. J. , pp. oi86, 486; Globe, pp. °9S, 447. 

713. Executive: Choice: One term only. 

1841, Aug. .8. 27th Cong., 1st sess. By Mr. Cranston of Rhode Island, from 
the general assembly of Rhode Island; received. H. J., p. "808. 

713. Executive: Choice: One term only. 

714. Executive: To pass bills vetoed by a majority. 

1841, Sept. 10. 27th Cong., Ist sess. By Mr. Owsley of Kentucky. H. J., p. 
*'4»4; Globe,p.*»447. 

715. Executive Offices: Exclusion of members of Congress. 

1841-42, Dec. 29-Mar. 4. 8. B. 2, 27th Cong., 2d sess. By Mr. Clay of Ken- 
tucky; read twice; considered. S. J.,p.58; Globe, pp.°60, 164-167, 200, 221, 237, 
289,260,266,282,288. 

716. Executive: Veto reversed by a majority: No "pocket veto.'* 

1841-'42, Dec.29-Mar. 4. S. R„ 3, 27th Cong., 2d sess. By Mr. Clay of Ken- 
tucky ; read twice; considered. 8. J, , pp. 58, 1 19, 136, 153, 166, 187, 191, 208; Globe, 
pp. °69, 164, 166, 167, 200, 221, 237, 250, 260, 266, 282. 

717. Executive Officers: Secretary of the Treasury and Treasurer 
appointed and removable by Congress. 

1841^, Dec 29-Mar..4. S. R. 4, 27th Cong., 2d seas. By Mr. Clay of Ken- 
tucky; read twice; considered. 8. J., p. 58; Globe, pp. «ee, 164-167, 200, 221, 237, 
260,260,266,282. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 351 

717a. Executive: One term only. 

IBiSt^ Jan. 6. 27th Cong., 2d aeias. By Mr. Phelpe, from tho legislature of 
Vermont; ordered printed. S. J., p. «*70. 

718. Executive: Choice: New qualifications. 
718a. Executive: Term, no two consecutive. 

1842, Mar. 21-Ang. 90. H. R. 7, 27tli Cong., 2d sees. By Mr. Underwood of 
Kentucky; to select com.; com. reiwrt; tabled. H. J., pp. 666, 1466; Globe, 
pp. "350, »73. 

719. Executive: Deprived of appointing certain Cabinet officers. 

1842, Mar. 21-Aug. 30. H. R. 7, 27th Cong., 2d sess. By Mr. Underwood of 
Kentucky; to select com.; com. rei>ort; tabled. H. J., pp. 566, 1466; Globe, 
pp. °360, 973. 

720. Executive: Veto reversed by a majority. 

1842, Mar. 21-Aug. 80. H. B. 7, 27th Cong., 2d sess. By Mr. Underwood of 
Kentucky; to select com.; com. report; tabled. H. J., pp. 666, 1456; Globe, 
pp. O860, 97a 

721. Executive: Independent Treasury and Post-Office Departments. 

1842, Mar. 21-Aug. 30. H. R. 7, 27th Cong., 2d sess. By Mr. Underwood of 
Kentucky; to select com.; com. rei>ort; tabled. H. J., pp. 665, 1466; Globe, 
pp. 0350, 973. 

722. Executive Officers: Terms and removal from office regulated by 
law. 

1842, Mar. 21-Aug. 80. H. B. 7, 2rth Cong., 2d sess. By Mr. Underwood of 
Kentucky; to select com.; com. reiwrt; tabled. H. J., pp. 665, 1456; Globe, 
pp. <'360, 973. 

723. Executive Offices: Exclusion of members of Congress. 

1842, Mar. 21-Aug. 30. H. R. 7, 27th Cong., 2d sess. By Mr. Underwood of 
Kentucky; to select com.; com. report; tabled. H. J., pp. 565, 1456; Globe, 
pp. «»350, 978. 

724. ElxecutLve: Choice: Nominations by State legislature: Direct vote. 

1842. Mar. 21-Aug. 30. H. R. 7. 27th Cong., 2d sess. By Mr. Underwood of 
Kentucky; to select com.; com. report; tabled. H. J., pp. 565, 1466; Globe, 
pp. »860.978. 

725. Legislative: Limit number of Representatives. 

1842, Mar. 21-Aug. 30. H. R. 7, 27tUCong.,2d sess. By Mr. Underwood of 
Kentuky; to select com.; com. report; tabled. H. J., pp. 665, 1456; Globe, 
pp. 0350, 978. 

726. 1. Executive: Choice: One term only. 

727. 2. Executive: Exclusion of members of Congress. 

728. 8. Executive: Power of removal limited. 

729. 4. Executive: Veto diminished. 

1842, Apr. 6-15. 27th Cong., 2d sess. By Mr. Underwood of Kentucky, from 
general assembly of Kentucky; referred to select com. H. J., pp. o677, 712; 
Globe, p. 426. By Mr. Crittenden, in Senate. S. J., pp. *>272-2T8. 

780: Executive: To pass bills vetoed by a majority. 

1842, Aug. 16-17. 27th Cong., 2d sess. By Mr. J. Q. Adams of Massachusetts, 
from the select com; read; considered; failed (99 to 90). H. J., pp. 1296, 
•1352, 1365; Globe, pp. 877, 896, 906. 

731. Judiciary: Limiting term of judges to seven years. 

1842-48, Dec. 1^-Jan. 16. S. B. 1, 37th Cong., 8d sess. By Mr. Tappan of Ohio; 
read twice; failed to be passed to third reading (11 to 24). S. J., pp. 24, 107; 
Globe, pp. 39, 41, 162. 



352 AMERICAN HISTORICAL ASSOCIATION. 

782. Executive; Choice: One term only. 

1843-44, Dec. IS-Jan. 8. H. R. 1, 28th Cong.« let sees. By Mr. Hunt of New 
York; read. H. J., pp. <»83, 140. 

733. Legislative: Apportionment of Repreeentativee to free persons. 

784. Finance: Apportionment of taxes to free persons. 

1848-44, Dec 21- Apr. 4. 28th Cong., Ist seas. By J. Q. Adams of Massachu- 
setts, from the legislature of Massachusetts (March, 1848); to select com.; 
consideration refused three time»; report of com. adverse; report accepted 
(156 to 13). H. J , pp. <n»-97, 281, 347, 400, 630, 631, 638, 642, 666, 668, 726, 727, 728, 
783; Globe, pp. 62, <'64, 65, 66, 73, 179, 180, 205, 229, 476, 481. Laws and Resolves 
of Massachusetts, Vol. xvi, chap. 60, p. 79. 

784a. Letpslative: Apportionment of Repreeentativee to free persons. 

784b. Finance: Apportionment of direct taxes to free persons. 

1844, Jan. 16. Resolutions of the legislature of Maaaachusetts. Laws and 
Resolves of Massachusetts, Vol. x vi. chap. 1, p. 288. 

785. Execntlve: Choice: Vote directly by States. 

1844, Jan. 15. 28th Cong., 1st sess. By Mr. Dana of New York; laid over. 
H.J.,p.<>226; Globe,p.oi44. 

786. Territorial Power: To retrocede certain jurisdiction of Congress 
over District of Columbia to Virginia and Maryland. 

1844, Jan. 29. 28th 0>ng., 1st sess. By Mr. CTampbell of South Carolina: 
read. H. J., pp. "307, 306; G^lobe, p. o2QB. 

787. Jndiciary: Limit term of judges to seven years. 

1844, Feb. 20. S.R.4, 28th Cong., Ist sess. By Mr. Tappan of Ohio; read 
twice. S.J.,pp.l28,132; Globe, pp. 86, 297, 300. 

738. Executive: Choice of electors by districts. 

1844, Mar. 11 . 28th Cong. , Ist sess. By Mr. Qarrett Davis of Kentucky ; laid 
over. H.J.,pp.«565-556; Globe, p. *'367. 

789. Executive: Choice by districts. 

1844, June 15. S. R. 27, 28th Cong., 1st sess. By Mr. Benton of Missouri; 
read. S. J., p. 369; Globe. pp. 668, <>686, 687. 

740. Executive: From candidates of all the States, chosen by lot. 

1844, Dec. 17. H. R. 49, 28th Cong., 2d sess. By Mr. Vinton of Ohio; read 
twice; to Com. on Judiciary. H.J.,p.<>95; Globe, p. 40. 

741. Executive: Choice: Vote directly by States. 

isa, Dec. 17. H. R. 50, 28th Cong.. 2d sess. By Mr. Slidell of Louisiana; read 
twice; to Com. on Judiciary, fi. J., p. <'97; Globe, p. °41. 

742. Executive: Ineligible to reelection. 

1844, Dec. 23. H. R. 52, 28th Cong., 2d sess. By Mr. W. Hunt of New York; 
read twice; to Com. on Judiciary. H. J., p. 125; Globe, 64. 

748. Executive: Choice: Second election by joint convention of Congress. 

1845, Jan. 28. H. R. 69, 28th Cong., 2d sess. By Mr. Dromgoole of Virginia; 
read twice; to Com. on Judiciary. H. J., p. 2B0; Globe, p. 210. 

744. Elxecutive: From candidates of all the States, chosen by lot. 

1846, Jan. 13-Feb. 16. H. R. 8, 29th Cong., 1st sess. By Mr. Vinton of Ohio: 
read twice; to Com. of the Whole; considered. H. J., pp. 249, 411; Globe, pp. 
«194, 376l 

745. Executive: Term six years, ineligible thereafter. 

1846, Jan. 21-Feb. 2. S. R. 8, 29th Cong., 1st sess. By Mr. Bagley of Ala- 
bama; read twice; tabled. S. J., pp., 113, 124; Globe, p. **226. 

746. Executive: Members of Congress ineligible. 

1846, Jan. 21-Feb. 2. 8. R. 8, 29th Cong., Ist seas. By Mr. Bagley of Ala 
bama; read twice; tabled. 8. J., pp. 113, 124; Globe, p. °228. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 353 

747. Executive Offices: Members of Congress ezcladed from Cabinet. 

1840, Jan. 21-Feb. 2. S. R. 8, 29th Cong., 1st aess. By Mr. Bagley of AIbt 
bama; read twice; tabled. S. J., pp. 113, 124; Globe, p. ^226. 

748. Executive: No second term. 

749. Executive Offices: Members of Congress excluded from office. 

1846, Feb. 16- Aug. 3. 29th Cong., Ist aeaa By Mr. W. Hunt of New York; 
read; not received. H. J., p. 408; Globe, pp. 377, °1180, 1181. 

750. Judiciary: Judicial power not to declare a State act or act of Con- 
gress unconstitutional. 

1846-47, Dec. 22-Jan. 20. S. R. 2, 29th Cong., 2d sees. By Mr. Semple of 
Illinois; read twice; to Com. on Judiciary; discharged from consideration. 
S. J., pp. 64, 70, 116; Globe, pp. 61, 82, 213; Niles' Register, Vol. Lxxi, p. «280. 

751. Executive: Election of postmasters and other officers. 

1848, Jan. 17. 30th Cong., 1st sess. By Mr. Wentworth of Illinois; to Com. 
on Judiciary. H. J., p. •258; Globe p. «»181. 

752. Judiciary: Term of judges. 

1848, Mar. 13. 30th Cong. , 1st sess. By Mr. J. Thompson of MiastasipDi; read; 
to Com. on Judiciary to report. H. J., p. °554; Globe, p. <>458. 

753. Amendment to the Constitution. 

1848, May 13. dOth Cong., 1st sess. By Mr. Brodhead of Pennsylvania, in the 
House; asked permission to introduce. Globe, p. 764. 

754. Executive: Choice, direct vote by States. 

1848, Dec. 11-^. 30th Cong., 2d sess. By Mr. Lawrence of New York; to 
Com. on Judiciary; com. die$charged; tabled. H. J., pp. °66, 67, 160; Globe, 
p. 26. 

755. Executive: Reverse veto by majority vote. 

755a. Executive: Ineligible to reelection for four years. 

755b. Judiciary: Removal of judges by Congress. 

755c. Executive Offices: Tenure of office. 

755d. Executive Offices: Exclusion of members of Congress. 

1840, Feb. 23. S. B. 64, 30th Cong., 2d sess. By Mr. Underwood of Kentucky; 
read. H. J., p. 252; Globe, p. 585. 

756. Legislative: Election of Senators by the people. 

I860, Jan. 14. S. B. 2, Slst Cong., Ist sess. By Mr. Clemens of Alabama; 
read twice; to Com. on Judiciary; report. S. J., pp. 77, 108; Globe, pp. •»88, Ifia 

757. Division of Powers: Rights of local legislation. 

758. Division of Powers: Right of establishing local government. 

1850, Jan. 28-Feb. 4. Slst Cong., 1st sess. By Mr. Disney of Ohio. First 
attempt not received; second time presented, tabled. Globe, pp. ^228, <>276; 
H. J., pp. 0463-454. 

759. Executive: Pass bills vetoed, by a majority. 

1850, Apr. 3. S. R. 17, Slst Cong., Ist aess. By Mr. Underwood of Kentucky; 
read twice; tabled. S. J., p. 248; Globe, p. "eSl. 

760. Executive: Qualifications: Ineligibility to reelection for four years. 

1850, Apr. 3. S. R. 17, Slst Cong., 1st sess. By Mr. Underwood of Kentucky; 
read twice; tabled. S. J., p. 248; Globe, p. o631. 

761. Judiciary: Removal of judges by Congress. 

1850, Apr. 3. S. B. 17, 31st Cong. , 1st sess. By Mr. Underwood of Kentucky; 
read twice; tabled. S. J., p. 248; Globe, p. <'631. 

762. Executive Offices: Tenure of office. 

1850, Apr. 3. S. B. 17, Slst Cong. , Ist sess. By Mr. Underwood of Kentucky ; 
read twice; tabled. S. J.. p. 248: Globe, p. •631. 

H. Doc. 363, pt. 2 23 



354 AMEBICAN HISTORICAL ASSOCIATION. 

763. Ezecatiye Offices: Ezclnsion of members of Congress. 

I860, Apr. 3. S. B. 17, Slst Cong. , 1st seas. By Mr. Underwood of Eentacky; 
read twice; tabled. S. J., p. 248; Qlobe, p. ^asi. 

764. Personal Relations: To prevent the abolition of slavery. 

1860, July 6. 31st Cong., 1st sess. By Mr. Daniel of North Carolina, in the 
Honse; not received. Globe, p. **1349. 

765. Executive: Choice directly by districts. 

1851, Feb. 21. H. B. 37, Slst Cong. , 2d sess. By Mr. A. Johnson of Tennessee; 
read twice ; to Com. of the Whole. H. J. , p. 822; Globe, p. «e27. 

766. Leg^lative: Senators elected by the people. 

1851 , Feb. 21. H. B. 87, Slst Cong. , 2d sess. By Mr. A. Johnson of Tennessee; 
read twice: to Com. of the Whole. H. J. , p. 822; Globe, p. <^827. 

767. Judiciary: Term of jndges twelve years. 

1861, Feb. 21. H. B. 87, Slst Cong. , 2d sess. By Mr. A. Johnson of Tennessee; 
read twice; to Com. of the Whole. H. J., p. 322; Globe, p. <*027. 

768. Executive: Election of deputy postmasters. 

1861, Dec. 17. a2d Cong., Ist sess. By Mr. Allen of Massachusetts; to Com. 
on Judiciary to report. H. J.,p.**112; Globe, p. "121. 

769. Legislative: Election of Senators by the people. 

1852, Jan. 15. H. B. 9, 32d Cong.. 1st sess. By Mr. Mace of Indiana; read 
twice; to Com. on Judiciary. H. J. , pp. 64, 215; Globe, p. 284. 

770. Executive: Choice directly by districts. 

1852, Feb. 2. H.B.14,32d Cong., Ist sess. By Mr. A. Johnson of Tennessee; 
read twice; to Com. on Judiciary. H. J. , p. 306; Globe, p. ''443. 

771. Legislative: Senators elected by the people. 

1852, Feb. 2. H.B.H.SSd Cong., 1st sess. By Mr. A. Johnson of Tennessee; 
read twice; to Com. on Judiciary. H. J. , p. 306: Globe, p. °443. 

772. Judiciary: Term of judges twelve years. 

1852, Feb. 2. H. B. 14. 32d Cong., Ist sess. By Mr. A. Johnson of Tennessee; 
read twice; to Com. on Judiciary. H. J. , p. 306; Globe, p. °443. 

778. Executive: Choice directly by districts. 

1853, Dec. 12. H. B. 2, 33d Cong., 1st sesa By Mr. Ewing of Kentucky; to 
Com. on Judiciary; com. appointed to confer with Senate com. H. J., pp. 41, 
64, 232, 238, 205; Globe, pp. 202, 238, 283, 294, 475, 1372. 

1856, Feb. 2. H. B. 2.33d Cong., 2d sess.; tabled. H.J.,288. 

774 [778], Executive: Choice: One term only. 

1864, Feb. 24. H. B. 2, 33d Cong., Ist sess. By Mr. Taylor of Ohio; ask for 
com. on Mr. Swing's resolution to inquire as above; objected to. Globe, p. 475. 

775. Legislative: Election of Senators by the people. 

1853-^, Dec. 12-Jnne 10. U. B. 3, 33d Cong., 1st sess. By Mr. Mace of Indiana; 
read twice; to Com. on Judiciary; to select com. H. J., pp. 60, 960: Globe, 
pp. 38, 1372. 

776. Executive: Election of postmasters and collectors. 

1854, Jan. 30. 88d Cong., 1st sess. By Mr. Walbridge of New York, that a 
select com. inquire into expediency; failed. H. J., p. **292; Globe, p. 202. 

777. Legislative: Qualification necessary to vote for Representative. 

1858, Jan. 18. 35th Cong., 1st sess. By Mr. Marshall of Kentucky; read. 
H. J., p. 186; Globe, p. *>327. 

778. Personal Relations: Recognition of the right of property in slaves. 

779. Personal and Territorial Relations: Protection of this right in the 
Territories. 



PROPOSED AMEin>MENTS TO THE CONSTITUTION. 355 

780. Personal and Territorial BelationB: Return of fngitive slaves. 

I860, Dec. 4. 9Bth Cong., ^ Mas. By President Buchanan in Ids annual 
meesage. 8.J.,P<^18. 

781. Amendment. 

I860, Dec. 4. 86th Cong., 2d sees. By Mr. Nelson of Tennessee; notice 
given. H.J.,p.lO. 

782. Personal Rights: Fnll protection to the rights of property. 
788. Interstate Relations: Insuring the equality of the States. 

I860, Dec. 6. a6th Cong., 2d sess. By Mr. Powell of Kentucky, that this 
portion of the President's message be referred to select com. to Inquire Into 
condition of the country; considered; referred to com. ; com. report; unable 
to agree. 8. J. , pp. 83, 85, 88, 40, 43, 46, 49, 66, 72, 76; Globe, pp. ^U), 28, 47, 71, 86, 99, 
116,158,172,182,211,248. 

784. Personal and Territorial Relations: tilayery in the Territories 
divided by the line of 36" 30'. 

785. Commerce: Interstate slave trade permitted. 

786. Commerce: Foreign slave trade prohibited. 

787. Personal Relations: Return of fugitive slaves. 

788. Personal Relations: Right to travel with slaves. 

789. Personal Relations: Laws of Congress on return of fugitive slaves 
^ supreme. 

! I860, Dec. 12. 86th Cong., 2d sess. By Mr. Cochrane of New York; received; 

referred. H. J., pp. *>61-62; Globe, p. *77. 

790. Personal Relations: Congress to have no jurisdiction over slavery. 

791. Personal and Territorial Relations: Duty of Congress to protect 
slavery in the Territories. 

792. Personal and Territorial Relations: Territorial legislatures to have 
no jurisdiction over slavery. 

793. Personal Relations: Right to travel with slaves. 
I 794. Personal Relations: Fugitive slaves. 

I860, Dec' 12. 86th Cong., 2d sess. By Mr. Leake of Virginia. H. J., p. «66; 
Globe, p. «77. 

795. Amendment: Changes in form of Gk>verument required for the self- 
preservation of the slave-holding States. 

I860, Dec. 12. dSth Cong., 2d sess. By Mr. Jenkins of Virginia, that a com. 
be appointed to inquire what changes are necessary, suggesting several for 
consideration, as dual Execatiye; division of Senate into two bodies; making a 
majority of Senators from the two sections necessary for all action, and the 
creation of another advisory body or council. H. J., pp. °65-66; Globe, p. 77. 

796. Personal and Territorial Relations: Slavery to be prohibited north 
of 36° 30' and protected south. 

797. Territorial Powers: Admission of Territories. 

798. Commerce: Interstate slave trade permitted. 
79'J. Territorial Powers: Congress shall not abolish slavery in District 

of Columbia, etc. 

I860, Dec. 12. a6th Cong., 2d sees. By Mr. Mallory of Kentucky, that special 
com. be instructed to reix>rt as above. H. J., p. <>67; Globe, p. °78. 

800. Personal and Territorial Relations: Slavery in Territories: Admis- 
sion of Territories. 

801. Personal Relations: Slave property shall not be impaired. 



356 AMERICAN HISTORICAL ASSOCIATION. 

802. Personal Relations: Remuneration for fng^tivee. 

18e0« Dec. De. asth Cong., 2d sees. By Mr. English of Indiana, that the Com 
of Thirty-three be instructed to inquire. H. J., p *»67; Olobe, p. <*78. 

803. Personal Relations: Remuneration for fugitives. 

I860, Dec. \2. d6th Cong., 2d sees. By McClernand; com. to oooslder if an 
amendment is necessary. H. J., p. ^'dS; Qlobe, p. <'78. 

804. Ezecutive: Presidency abolished: Executive Council. 

I860, Dec. 12. 86th Cong., 2d sess. By Mr. Noell of MlsBourl, that Com. of 
Thirty -three inquire into exjiediency. H. J., pp. "69-70; Globe, p. «T0. 

805. Personal Rights: Express recognition of right of property in slaves. 

806. Personal and Territorial Relations: Federal Qovemment shall pro- 
tect slavery in District of Columbia and Territories. 

807. Territorial: Admission of Territories. 

808. Personal Relations: Right to travel with slaves. 

800. Personal Relations: Enforcement of return of fugitive slaves: Slave 
States a negative on ail acts of Congress on slavery. 

810. Power of Amendment: The above and three-fifths representation 
for slaves to be unamendable. 

811. Division: Federal officers within States to be appointed by States. 

I860, Dec. 12. 96th Cong., 2d sess. By Mr. Hindman of Arkansas; referred 
to Select Com. on Condition of Country. H. J., p. <>70; Olobe, pp. <*78-7V. 

812. Amendment: Gall of a convention to amend. 

I860, Dec. Id. 86th Cong., M sess. By Mr. Larrabee of Wisconsin. H. J., 
p. *ro; Olobe, p. 79. 

818. Executive: Choice, by districts: Case of no majority. 

814. Legislative: Election of Senators by the people. 

815. Judiciary: Term of judges: One-half from slave-holding States 
and one-half from nonslave-holding States. 

I860, Dec la. S. B. 48, a6th Cong., 2d sess. By Mr. Johnson of Tennessee; 
read twice; considered; postiwned. S. J., p. 41; Qlobe, pp. **82-83l 

816. Personal and Territorial Relations: Division of the Territories. 

817. Personal Relations: Fugitive slaves. 

818. Personal and Territorial Relations: Slavery may exist in United 
States forts, etc. 

819. Personal and Territorial Relations: Slavery in the District of 
Columbia. 

820. Power of Amendment: The three-fifths representation of slaves not 
to be changed. 

821. Commerce: Interstate slave trade permitted. 

822. Power of Amendment: These provisions to be unamendable. 

I860, Dec. 13. 86th Cong., 2d sess. By Mr. Johnson of Tennessee; read 
twice; considered; postponed. 8. J., p. 41; Globe, pp. **82-88. 

823. Territorial Powers: Admission of Territories: Right of property. 

I860, Dec. 17. d6th Cong., Sd sess. By Mr. Cochrane of New York. H. J., 
p. "SI; Globe, p. 107. 

824. Relation of State and Federal Governments: Provision for fhe 
assent of United States to a State's secession. 

I860, Dec 17. d6th Cong., 2d sess. By Mr. Sickles of New York. Referred 
to Select Com. on State of the Country. H. J., p. *>82; Globe, p. 107. 

825. Personal and Territorial Relations: Right of property in slaves in 
the Territories. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 357 

826. Territorial Powers: Admission of new States. 

I860, Dec. 18. 96th Cong., 2d sees. By Mr. Florence of Pennsylvania; re- 
ferred to Select Com. on Presideur s Message H. J. , pp. <*0S3-O3; Globe, pp. ''lOS, 
100, m. 

827. Territorial and Personal Relations: Slavery prohibited in territory 
north of and recognized south of 86° 80'. 

828. Territorial Powers: Admission of Territories as States. 

829. Territorial Powers: Slavery in territory of United States within 
slave States. 

830. Territorial Powers: Slavery in the District of Columbia: Federal 
officers shall be permitted to bring their slaves into District of 
Columbia. 

881. Commerce: Interstate slave trade permitted. 

832. Personal Relations: United States responsible for rescued fugitive 

slaves. 
883. Power of Amendment: The above provision, also the three-fifths 

slave representation and fugitive-slave clauses shaU be unamenda- 

ble. and no amendment shall be made giving Congress power to 

abolish slavery. 

1800, Dec. 18. S. B. 60, dOth Cong., 2d sess. By Mr. Crittenden of Kentucky; 
read twice; postponed. 8. J., pp. 49, 08; Olobe, p. '^lU. 

834. Amendment: Call of a convention to amend. 

1800, Dec. 18. 86th Cong., 2A sess. By Mr. Lane of Ohio; read. S. J., pp. 
047-48; aiobe,p.oil2. 

835. Amendment: Convention to amend. 

1800, Dec. 24. S. R. 51, 36th Cong. , 2d sess. By Mr. Pngh of Ohio; read twice ; 
to a select com.; reported; unable to agree. S. J., pp. 61, 06, 67; Olobe, p. 
•183. 

836. Territorial and Personal Powers: Congress shall make no law as to 
slavery in the Territories. 

837. Territorial and Personal Powers: Admission of Territories. 

838. Territorial and Personal Relations: A representative without vote 
in the Senate and in the House given to the Territories. 

839. Territorial and Personal Relations: Acquirement of new territory. 

840. Territorial and Personal Relations: Area of all new States to be 
equal. 

841. Personal. Relations: Fugitive-slave clause to extend to Territories. 

842. Judiciary: Jurisdiction extends to Territories. 

843. Personal Relations: Franchise shall not be given to persons of the 
African race. 

844. Personal Relations: Colonization of free negroes. 

845. Territorial and Personal Relations: Slavery in United States terri- 
tory. 

846. Territorial and Personal Relations: Slavery in the District of 
Columbia: Right of Federal officers to hold slaves in the District 
of Columbia. 

847. Commerce: Interstate slave trade permitted. 

848. Commerce: African slave trade prohibited. 

849. Personal Relations: United States required to pay for fugitive 
slaves released. 



358 AMERICAN HISTORICAL ASSOCIATION. 

850. Power of Amendment: The above provision, also the three-fifths 
slave representation and fugitive slave clauses, shall be nnamenda- 
ble, and no amendment shall be made giving to Congress power to 
abolish slavery. 

1800, Dec 24. 8. R. 62, 36th Confirm Sd sess. By Mr. Douglass of Illinois; 
read twice; to select com.; report; unable to agree. S. J., pp. 61, 66, 67; 
Qlobe, p. 183; Senate Reports, pp. *>8-10. 

851. Personal rights: Property in slaves recognized and protected. 

1860, Dec. 24. d6th Cong., 2d sess. By Mr. Davis of Mississippi; considered; 
referred to a select com.; report; nnable to agree. S. J., pp. °63, 66, 67; 
Globe, p. '^IflO. 

852. Amendment: To take the sense of the people on the following: 
852a. Territorial and Personal Relations: Slavery prohibited in Terri- 
tories north of and recognized sonth of d6' 30'. 

852b. Territorial Powers: Admission of Territories as States. 

852c. Territorial Powers: Slavery in Federal territory within slave 

States. 
852d. Territorial Powers: Slavery in the District of Columbia. Federal 

officers permitted to bring their slaves into the District. 
852e. Commerce: Interstate slave trade permitted. 
852f. Personal Relations: United States responsible for rescned fugitive 

slaves. 
852g. Power of Amendment: The above provisions, also the three-fifths 

representation of slaves, and fugitive-slave clauses shall be unamend. 

able, and no amendment shall be made giving Congress power to 

abolish slavery. 
852h. Personal Relations: Persons of the African race disqualified from 

holding office or exercising the franchise. 

1861, Jan. 3-Mar. 2. S. R. 54, 96th Ck>ng., 2d sess. By Mr. Crittenden of 
Kentucky; read twice; con.^dered in Com. of the Whole; postponed; re- 
jected and reconsidered; amended by Mr. Powell; attempt to sabstitnte 
Peace Commission amendments; lost (7to28). Read third time; rejected (19 to 
SO). S. J., pp. n, 76, 85, 87, 88, 89, 96, 97, 99, 106, 106, 107, 129, 138, 136, 137, ''SSi, 885, 
386, 387; Globe, pp. oil4, 211, 237, 289, 360. 379, 402, 410, 448, 489, 606, 1068, 1185, 1408. 

853. Personal Relations: Congress prohibited from interfering with 
slavery in the States. 

854. Personal and Territorial Relations: Congreaa prohibited from inter- 
fering with slavery in Federal territory within slave .States. 

855. Territorial and Personal Relations: Slavery in District of Colmnbia. 

856. Commerce: Interstate slave trade permitted. 

857. Commerce: Slave trade prohibited. 

858. Territorial and Personal Relations: Right of property in slaves in 
the Territories: Division line. 

859. Territorial and Personal Relations: Annexation of territory. 

860. Personal Relations: Retnm of fugitive slaves. 

1861, Jan. 7. 36th Con., 2d sess. By Mr. Etheridge of Tennessee, in the 
Honse; read; motion to suspend mles and consider lost. Globe, p. ^279. 

861 . Amendment: To take the sense of the people on certain amendments 
on February 15. 

1861, Jan. 12. S. bill 587, 36th Cong., 2d sees By Mr. Bigler of Pennsyl- 
vania, in the Senate; read. Globe, p. 351. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 359 

862. Amendment: Protection of slavery. 

1861, Jan. U. 86th Cong., 2d sees., by Mr. Rngliwh of Indiana, in the House, 
reaolution providing for the adoption of the Crittenden resolation. Globe, 
pp. 368, 366, 488. See Nos. 827-833, 862-862h. 

863. Executive: Choice. 

1861, Jan. li. H. B. bill 982. By Mr. Whitely of Delaware; read twice; to 
Com. on Jndiciary. H. J., p. 186; Globe, p. 368. 

864. Personal and Territorial Relations: Division line between free and 
slave Territories 36° 40'. 

865. Personal and Territorial Relations: Congress shall not abolish 
slavery in its territory within slave States. 

866. Personal and Territorial Relations: Congress shall not abolish 
slavery in the District of Columbia. 

867. Commerce: Interstate slave trade permitted. 

868. Personal Relations: Congress required to pay for fugitive slaves 
escaped. 

869. Power of Amendment: The preceding articles shall be nnamend- 
able. 

1861, Jan. 15. 36th Cong., 2d sess. By Mr. Florence of Pennsylvania, in the 
Honse, to suspend the rules; entered. Globe, p. ''STB. 

860a. Personal and Territorial Relations: Division line between free 

and slave Territories, 36" 40'. 
869b. Territorial Powers: Admission of Territories as States. 
869c. Personal Relations: Congress prohibited from abolishing slavery 

in the States. 
869d. Personal Relations: Congress prohibited from abolishing slavery 

in Federal territory within slave States, District of Columbia, or in 

Territories south of said line. 
869e. Commerce: Congress prohibited from abolishing the interstate 

slave trade. 
869f. Commerce: African slave trade prohibited. 
869g.- Personal Relations: Return of fugitive slaves. 
869h. Personal Relations: Persons of the African race disqualified from 

holding office or exercising the franchise. 
869i. Personal Relations: Colonization of free negroes. 
869 j. Personal Relations: United States required to pay for fugitive 

slaves rescued. 
869k. Elxecutive: Term, six years: Ineligible to reelection for six years. 
8691. Executive: Electors chosen by the people in Congressional dis- 
tricts; two at large by the legislature. 

1861, Jan. 18. d6th Conar., 2d sess. By Mr. Dousrlas of Illinois, as an amend- 
ment to S. R. .64. Globe, p. 443. 

869m. Territorial and Personal Relations: Congress shall make no law as 

to slavery in the Territories. 

1861, Jan. 18. d6th Cong., 2d sess. By Mr. Donglas; same as the preceding, 
save section 1. Intended as an amendment to B. R. 64. Globe, p. 448. 

870. Amendment: Protection of slavery. 

1861, Jan. 22. d6th Cong., 2d sess. Resolution from the legislature of Dela- 
ware, approving of the '' Crittenden amendments;" read. S. J. , p. 129. 

871. Personal Relations: Legislation on slavery prohibited. 



360 AMERICAN HISTORICAL ASSOCIATION. 

872. Commerce: African slave trade prohibited; fugitive slaves. 

1861, Jan. 23. d6th Ck)!!^., 2d seas. By Mr. Morris of Pennsylvania, in the 
Honse. Globe, p . '*527. 

878. Amendment: Call of a i)eace convention to propose amendments. 

1861. Jan. 28. 36th Cong., 2d seas. Resolution from the legislature of Vir- 
ginia, extending an invitation to all the States to appoint commissioners to 
meet for the consideration of some adjustment. S. J. , p. Itf ; Globe, p. 690. 

874. Amendment: To take the sense of the people on the following 
amendments: 

874ab. Territorial Relations: Division of the Territories by a line on 
parallel 36'' 30'. 

874c. Territorial Relations: Two-thirds vote of Senate necessary for 
acquiring new territory. 

874d. Territorial and Personal Relations: Slavery prohibited north of 
said line; recognized and protected sonth of said line. 

874e. Territorial Powers: Admission of Territories as States. 

874f . Personal Relations: Congress prohibited from abolishing slavery 
in Federal territory within slave State and in District of Colnmbia. 

874g. Personal Relations: Compensation for fugitive slaves rescued 
required. 

874h. Commerce: Interstate slave trade permitted. 

874i. Commerce: African slave trade prohibited. 

874 j. Executive: Term six years: Ineligible to reelection. 

874k. Power of Amendment: The provision in regard to three-fifths rep- 
resentation for slaves, and the fugitive-slave clause shall be un- 
amendable, and no amendment shall be made giving Congress 
X)ower to interfere or destroy the domestic institutions of the States. 

1861, Jan. 2S8. 36th Cong., 2d sess. H. bill 957. By Mr Cochrane of New 
York; read twice; to select com. H. J. , p. 281 : Globe, p. 597. 

875. Territorial and Personal Relations: Slavery permitted in territory 
south of Se'' 30'. 

876. Personal Relations: Legislation abolishing slavery prohibited. 

877. Territorial Powers: Admission of new States. 

878. Power of Amendment: Legislative: Present right of Representa- 
tives shall not be altered. 

879. Division of Power: Regulation of the right to labor to belong 
exclusively to the States. 

880. Division of Power: Exclusive power of regpilating labor in District 
of Columbia is ceded to Maryland. 

881. Personal Relations: No State shall pass any law contrary to fugi- 
tive-slave law. 

882. Personal Relations: Right of transit with slaves. 

883. Commerce: African slave trade prohibited. 

884. Personal Relations: Descendants of Africans excluded from citi- 
zenship. 

885. Personal Relations: Acts tending to excite an insurrection by 
slaves are penal offenses. 

886. Personal Relations: County of any State in which fugitive slave is 
rescued shall be liable for payment of full value. 

987. Territorial and Personal Relations: Slaves shall not be taken into 
any territory north of 36° 30'. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 361 

888. Personal Relations: Fngitive slaves shall have trial by jnry at the 
place to which they may be retnmed. 

889. Personal Relations: Criminal trial of fngitive slaves. 

890. Personal Relations: Citizens of any State sojonming in any other 
State shall have the right of trial by jnry and dne process of law. 

891. Interstate Relations: No State shall secede withont the consent of 
three-f onrths of the States. 

892. Power of Amendment: The right of the people in three-f onrths of 
the States to call and form a convention to alter, amend, or abolish 
the Constitution shall never be questioned. 

893. Power of Amendment: Articles 8, 9, 10 of these amendments shall 
not be altered withont the consent of the slave States. 

1861« Jan. 28. H. B. 67, 86th Cong., 2d pees. By Mr. Florence of Pennsyl- 
yania; read twice; to select com. H. J., p. 231; Qlobe,pp. °598; 479. 

894. Amendment: Provision for a popular vote on propositions to amend, 
proposed by Mr. Crittenden. 

1861, Jan. 28. H. B. 68, 86th Oonff., 2d sees. By Mr. Vallandigham of Ohio; 
read twice; to select com. H. J., p. 232; Olobe, p. 609. Same an S. B. 60. 
See Nos. 827-838. 

895. Amendment: Protection of slavery. 

1861, Feb. 1. 36th Cong., 2d sess. By Mr. Ten Eyck of New Jersey, from 
the legislature of New Jersey, indorsing the Crittenden amendments and ap- 
pointing commissioners for the conference. S. J., p. 178. 

896. Territorial and Personal Relations: Slavery prohibited in the Terri- 
tories north of 36"", 30'; permitted south, etc. 

897. Personal Relations: United States Government not to Interfere 
with slavery in States where it exists, nor sustain slavery in any 
State where it is prohibited. 

898. Personal Relations: Fugitive slaves. 

899. Commerce: Foreign slave trade prohibited. 

1861, Feb. 1. 36th Ck>ng., 2d sees. By Mr. Kellogg of Illinois. H. J., p. 255; 
Olobe, p. <*690. 

900. Amendments: Convention to propose amendments. 

1861, Feb. 5. 86th Cong., 2d sess. President sends the resolution of the 
legislature of Kentucky; read; to C^om. on Judiciary. S. J., pp. 189, 190; Globe, 
pp. 751, 762. 

901. Territorial: Division of the country into four sections. 

902. Legislative: On demand of one- third of Senators votes shall be 
taken by sections, and a majority from each section shall be neces- 
sary for the passage of a bill. 

908. Executive: Choice: A majority of all the electors in each of the 
sections shall be necessary. 

904. Executive: Term, six years. 

905. Interstate Relations: No State shall secede without the consent of 
the legislatures of all the States of its section. 

906. Personal Relations: Right of citizens from any section to migrate 
upon equal terms to the Territories. 

907. Territorial Relations: Admission of new States. 

1861, Feb. 7. 86th Cong, 2d sess. By Mr. Vallandigham of Ohio; received. 
H. J., p. 288; aiobe, pp. <>794-796. 



362 AMERICAN HISTORICAL ASSOCIATION. 

908. Amendment: Conyention to propose amendments. 

1861, Feb. 9. 9dth Cong., 2d sees. The Vioe-Preaident laid before the Senate 
reeolations from the Democratic convention of the State of Ohio; received 
(33 to 14); read; referred to a select com. S. J., p. 205. 

909. Amendments: To ascertain the sense of the people on the Crittenden 
amendment. 

1861, Feb. 11. H. R. 7^, dSth Cong., 2d seas. By Mr. Martin of Virginia: 
read twice; to Com. on Judiciary. H. J., p. 295; Olobe, p. o853. 

910. Relation of State and Federal GK)vernments: Preventing the with- 
drawal of States from the Union. 

1861, Feb. 11. 86th Cong., 2d mBS. By Mr. Ferry of Connecticut, in the 
House, that the Com. on Judiciary consider the expediency of an amendment; 
objection made. Globe, p. ^S6i. 

911. Amendment: Calling a national conyention. 

1861, Feb. 19. d6th Cong., 2d sess. By Mr. Fenton of New York, in the 
House; tabled. Globe, p. °1090. 

912. Territorial and Personal Relations: Slavery prohibited in the Terri- 
tories north of 36° 80' ; x)ermitted sonth. 

912a. Territorial Powers: Admission of new States. 

913. Personal Relations: CTnited States Government not to interfere 
with slavery in States where it exists, nor sanction slavery in any 
State where it is prohibited. 

914. Personal Relations: Retnm of fugitive slaves. 

915. Commerce: Foreign slave trade prohibited. 

916. Territorial Relations: Increase of territory restricted. 

1861, Feb. 20. 86th Cong., 2d sess. By Mr. Kellogg of Illinois, as an amend- 
ment to the Crittenden amendments (Nos. 827-883); considered; rejected. 
Globe, pp. «1243,°1259. 

917. Peace convention amendments. 

1861, Feb. 27. 36th Cong. , 2d sess. The Vice-President laid before the Senate 
a communication from the peace conventions of twenty-one States; read and 
referred to a select com.; reported as S. B. 70. S. J., pp. 888, 837; Globe, pp. 
°1264-1256. Same as given in Nos. 05l>-966. 

918. Territorial and Personal Relations: Slavery prohibited in terri- 
tory north of and permitted sonth of 36° 30'. 

918a. Territorial Powers: Admission of new States. 

919. Personal Relations: United States Government not to interfere with 
slavery in States where it exists nor sanction it where it is pro- 
hibited. 

920. Personal Relations: Retnm of fugitive slaves. 
931. Commerce: Foreign slave trade prohibited. 

922. Territorial Relations: Increase of territory restricted. 

1861, Feb. 27. d6th Cong., 2d sess. By Mr. Kellogg of IlllnoiB, as an amend- 
ment to H. R. 64: rejected (38 to 158). H. J., pp. 410, 411; Globe, p. <>1260. 

923. Territorial and Personal Relations: Slave and nonslave-holding 
Territories divided: Admission of new States. 

924. Territorial and Personal Relations: Congress shall not abolish 
slavery in its territory situated within slave-holding States. 

925. Territorial and Personal: Congress shall not abolish slavery in 
District of Columbia. 

926. Commerce: Interstate slave trade permitted. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 363 

927. Personal Relations: Pay for rescued fngitive slaves required. 

928. Power of Amendment: The above articles shall be xmamendable, 
also the three-fifths representation clanse, and the fngitivenslave 
clanse: No amendment shall be made abolishing slavery in States 
where it is permitted by law. 

929. Personal Relations: Persons of the African race excluded from the 
franchise and office. 

930. Personal Relations: Colonization of free negroes. 

1861, Feb. 27. d6th Cong., 2d sess. By Mr. Clemens of Virginia, as an 
amendment to H. R. 64; rejected (80 to 118). H. J., pp. °407-410; Globe, pp. 
01260-1361. 

**931. Personal Relations: Amendment abolishing slavery prohibited. 

1861, Feb. 27. H. R. 80; 86th Ck>ng. , 2d sees. From the Select Com. of Thirty- 
three. By Mr. Corwin of Ohio, as a snbstitiite; accepted; rejected; recon- 
sidered, and passed (133 to 66). 

Feb. 28-Mar. 2. Besolntion received in the Senate; read twice; consid- 
ered in Ck>m. of the Whole ; various amendments offered by Messrs. Pugh, Doo- 
little, Bingham, Grimes, Johnson; all rejected; passed (24 to 12). H. J., pp. 
416, «18, 420, 426, 480, 486; S. J., pp. 330, 8S0, 300, 374, 375-379, 380-383, 800, 392, 306; 
Globe, pp. °1268, 1264, 1274, 1285, 1318, 1340, 1364, 1374, 1379, 1408. 

Ratified by the following States: Ohio, general assembly of. May 13, 1861. 
"Laws of Ohio,'' Vol. lviii, p. °190. Maryland, general assembly of, Jan. 10, 
1862. ''Laws of the State of Maryland,*' 186l-«2, Chapter xxi, pp. o21-22. 
Illinois, constitutional convention of the State of, Feb. li, 1862. Documentary 
History of the Constitution of the United States, Vol. ii, pp. o518-4»10. (Bul- 
letin of the Bureau of Bolls and Library of the Dei>artment of State, No. 7.) 
See No. 1026. 

931a. Amendment: Calling a national convention. 

1861, Feb. 27. 36th Cong., 2d sess. By Mr. Burch, in the House, to be added 
to H. B. 80, for the several States through their legislatures to request 
Congress to call a convention; rejected (74 to 100). See No. 981. 

032. Territorial and Personal Relations: Slavery prohibited in Terri- 
tories north of and i)ermitted sonth of 86^ 30'. 

933. Territorial and Personal Relations: No legislation to prevent the 
taking of slaves into said Territories: Admission of new States. 

934. Territorial Powers: Annexation or acquirement of new territory. 

935. Personal Relations: To prevent the abolition of slavery in slave 
States; to prevent the abolition of slavery in District of Columbia; 
to permit members of 0>ngress to bring slaves with them. 

936. Personal Relations: Congress not to interfere with slavery in terri- 
tory of United States within States. 

937. Personal Relations: Fugitive-slave clause. 

938. (Ik)mmercial: Foreign slave trade prohibited. 

939. Power of Amendment: The first, third, and fifth sections, together 
with this section, and the three-fifths representation and the fugi- 
tive-slave clause, shall not be amended without the consent of all 
the States. 

940. Personal Relations: Payment for fugitive slaves released. 

1861, Feb. 28. S. R. 70, 36th Cong., 2d sess. By Mr. Crittenden of Kentucky, 
from the select com. to whom was referred the peace convention amend- 
ments; to be submitted to conventions in the several States; read twice; 
considered in Com. of the Whole; amendments proposed by Mr. Seward and 
Mr. Hunter rejected. S. J., pp. 337,840,868,864,874; aiobe, pp. '120O-127O, 1271, 
1806-1818, 1848, 1868. 



364 AMERICAN HISTORICAL ASSOCIATION. 

940a. Amendment: Convention to amend the Constitntion. 

1861. Resolution of the legiaUtnre of illinois, if application be made by any 
of the States declarinsr themselves agrfcrieved. PnbUc Laws of lUinois, 1B61. 
p. 281. 

941. Amendment: That the legriBlatores of the States consider the calling 
of a convention. 

1861, Feb. 28. S. R. 71, d6th ConfiTM 2d sees. By Mr. Seward of New York; 
read. S. J., p. 837; Globe, p. oi270. 

942 [981]. Territorial and Personal Relations: Line for division of slave 
and nonslave territory. 

943. Territorial Powers: Slavery in United States territory within slave 
States. 

944. Personal Relations: Members of Congress permitted to bring slaves 
into the District of Colombia. 

945. Personal Relations: Retnm of fugitives. 

946. Commerce: Interstate slave trade ];)ermitted. 

947. Commerce: African slave trade prohibited. 

948. Personal Relations: Punishment of persons who incite insurrection. 

949. Personal Relations: Payment for fugitive slaves released. 

950. Power of Amendment: These propositions shall not be amendable; 
also the three-fifths representation clanse and the fngitive-slave 
clause: Congress shall not abolish slavery in slave States. 

951. Personal Relations: Persons of the African race excluded from the 
franchise and from office. 

1861, Mar. 2. dSth Cong. , 2d sees. By Mr. Pngh of Ohio, as an amendment to 
H. R. 80; rejected (14 to 26). S. J., pp. «»877-379; Globe, p. ®1368. 

952 [931]. Relation of States with Federal Government: No State shall 

have power to secede. 
953. Relation of States with Federal Government: All laws of the United 
States shall be the supreme law. 

1861, Mar. 2. 96th Cong. , 2d sees. By Mr. Doolittle of Wisconsin, as an amend- 
ment to H. R. 80; rejected (18 to 28). S. J., p. °879; Globe, p. °1270, °1870. 

954 [981]. Amendment: That the States be invited to consider the call 
of a convention. 

1861, Mar. 2. a6th Ck)ng. , 2d sess. By Mr. Grimes of Iowa, as an amendment 
to H. B. 80; rejected (U to 25). S. J., p. <>980; Globe, p. <>1401. 

955 [931]. Territorial and Personal Relations: Division line of SQ'' 30' 
between slave and nonslave territory: No legislation to prevent 
taking slaves from any of the States into the said Territories. 

956. Territorial Relations: Acquirement of new territory restricted. 

957. Personal and Territorial Relations: Congress shall not have power 
to abolish slavery in any State: Congress shall not have power to 
abolish slavery in District of Columbia, nor prohibit Representa- 
tives from bringing their slaves into the District. 

958. Personal and Territorial Relations: Congress shall not abolish 
slavery in United States: Property within slave States. 

959. Commerce: Interstate slave trade within slave States. 

960. Personal Relations and Finance: No higher rate of taxation on 
slaves than on land. 

961. Commerce: Slave trade in District of Columbia prohibited. 

962. Personal Relations: Enforcing the delivery of fugitive slaves. 



PROPOSED AMENDMENTS TO THE CONSTITUTION. 365 

968. Commerce: Foreign slave trade prohibited. 

964. Power of Amendment: The first, third, and fifth sections, together 
with this section, and the three-fifths representation and fugitive- 
slave clattses of the Constitution shall not be amended without the 
consent of all the States. 

965. Personal Relations: Payment for fugitive slaves rescued. 

1801, Mar. 2, 96th Cong. , 2d aess. By Mr. Johnson of Arkansas, as an amer d- 
ment to H. R. 80; presented the resolntions of the peace convention. S. J. , pp. 
O880-382; Qlobe, pp. 1401-140^. 

966. Commerce: African slave trade prohibited. 

967. Personal Relations: Persons committing crimes against slavehold- 
ers shall be delivered up by States to which they flee. 

968. Personal Relations: Punishment of x)er8ons aiding in insurrection. 

1861, Mar. 2. 96th Cong., 2d sess. By Mr. Powell of Kentucky, as an amend- 
ment to S. B. 54. (SeeNo.852.) S. J.,p.<*384; aiobe,pp.a05,<'1404. i 

969. Amendment: Peace Convention Resolutions. i 

1861, Mar. 2. 96th Cong., 2d seas. By Mr. Crittenden of Kentucky, as an ] 

amendment to S. B. 51. The peace convention amendments rejected. S.J., \ 

pp. °384-986; Globe, pp. ol404-1405. Same as Nos. 956-965. j 

970. Amendment: Convention for proposing amendments. 

1861, Mar. 18. 36th Cong., 2d seas. The Vice-President laid before the Senate | 

the resolutions of the legislature of Indiana; read. S. J., pp. 420-421. | 

970a. Amendment: Convention for proposing amendments. | 

1861, Mar. 20. Resolutions of the general assembly of Ohio, making applica- 
tion for a convention to propose amendments. Laws of Ohio, Vol. LViii,p. I 
n81. 

971. Territorial and Personal Relations: Slavery prohibited in Terri- 
tories north of 36° 30', but recognized south of 36^ 30'. 

971a. Territorial Relations: Admission of new States. 

971b. Territorial and Personal Relations: Limitation upon the abolition 

of slavery in the District of Columbia: Federal officers permitted to 

bring their slaves into the District. 
971c. Commerce: Interstate slave trade i)ermitted. 
971d. Commerce: African slave trade prohibited. 
971e. Personal Relations: Return of fugitive slaves. 
971f. Personal Relations: Congress to punish persons aiding invasions or ^ 

insurrections in any State. 
971g. Personal Relations: Compensation for fugitive slaves rescued. 
971h. Amending Power: The above articles to be unamendable; also the 

three-fifths representation for slaves and fugitive-slave clauses: No 

amendment to abolish slavery in any State. 

1861, July 12. 37th Cong., Ist sess. By Mr. Saulsbory of Delaware; read 
twice; motion to consider; lost (11 to 24). S. J., pp. 82, 177; Globe, pp. 78, 433. 

972. Amendment: Convention to amend the Constitution. 

1861, Aug. 5. H. R. 8, 37th Cong., 1st sess. By Mr. Vallandigham of Ohio; 
read twice; to Com. of the Whole. H. J., p. 299; Globe, p. 444. 

973. Personal Relations: Compensation to States that abolish slavery 
before January 1, 1900. 

974. Personal Relations: Slaves who have enjoyed freedom by the 
chances of war shall be forever free: All owners of such, if loyal, to 
be compensated. 



366 AMERICAN HISTORICAL A8S0CIATI0K. 

075. Personal Belations: Colonization of free colored pensons. 

IHQS, De&l. 37th Cong., 8d seas. By President Lincoln in his aannal mm- 
flage. 8. J., pp. ^15-17. 

976. Amendment: Convention of the States for reconstmction of the 

Union. 

1882, Dec. 2. U. B. 10A,37th Cong., 3d seas. By Mr. Davis of Kentacky; read. 
8. J., p. 21. 

977. Amendment. 

1M2, Dec. 2. STth Cong., dd seas. By Mr. VaTlandlghani; gare notice. 
H. J., p. 29. [Text not given.] 

978. Execative: Choice. 

979. Ezecntiye: Presidential power of removal from oflBoe. 

980. Executive: Choice. 

1802, Dec. 8. 8. B., 106. a7th Cong., 3d seas. By Mr. Davis at Kentacky; 
read twice. 

186B, Mar. 3. Noe. 2 and 3 presented by Mr. Davis as amendments to 8. R. 
106; considered; tabled. 8. J., pp. 83, 406; Globe, pp. 16, IfiOl. 

981. Personal Relations: Slavery prohibited. 

1863, Dec. 14. H. bill 14, 88tli Cong., Ist sess. By Mr. Ashley of Ohio; read 
twice; to Com. on Judiciary. H. J., p. 44; Globe, p. 19. For text see Orations 
and 8peechee of J. M. Ashley, pp. 830-331. 

982. Personal Relations: Slavery prohibited. 

1863, Doc. 14. H. B. 9, 88th Cong., 1st sess. By Mr. Wilson of Iowa; read 
twice; to Com. on Jndldary. H. J., p. 46; Globe, p. <'21. 

983. Personal Relations: Prohibition of slavery. 

984. Amendment: Reducing the majorities required. 

1864, Jan. 11. 8, 16, SSth Cong., 1st sess. By Mr. Henderson of Miasonrt; 
read twice; to Com. on Judiciary ; com. report a sabstitate. (SeeNo.96Gk) 
8. J., pp. 67, 142; Globe, pp. 145, 558, «1S18. 

•**98ry [983]. Personal Relations: Prohibition of slavery. (The XIII 
Amendment. ) 

1864, Feb. 10-Apr. 8. 8. 16, 88th Cong. , 1st sess. By Mr. Tmmbnll, from the 
Com. on Judiciary, as a substitute for Mr. Henderson ^s amendment; con- 
sidered; various attempts to amend. (See below.) Agreed to by Com. of 
the Whole. Further amendments proposed. Passed by vote of 88 to 6. 8. J., 
pp.67, 142, 694, o291-92, »300-301, »30B, 804, «3U, 818. 88th Cong., 2d sess. 8. J., 
pp., 120. 122; Globe, pp. 145, 553, 694, »021, 1130, 1283, ol313, 1846, »1364, «1370, «1424, 
1426, n444, »1447, 1456, «1483, 1487-1490, d8th Cong., 2d sess; Globe, pp.632. 

1864, Apr. 9-nJune 16 (1865, Jan. 6-31). Beceived in the House; read; motion 
to reject; lost (55 to 76); read second time; considered; amendments proposed 
by Mr. Wheeler and Mr. Pendleton; read third time; failed to pass (95 to 66); 
motion to reconsider entered. 

1865, Jan. 6-31. 38th Cong., 2d sess. Motion to reconsider called up; con- 
sidered ; reconsidered (112 to 57) ; amendment passed (119 to 56). 38th Cong., Ist 
sesM. H. J., pp. 505, 728, 744, 810, 811, 812, 818; Globe, pp. »2612, 2723, 2830-2048, 
2992, 2995, 3IX)U. 3357, 88th Cong., 2d sess. H. J., 88, 86, 88, 90, 96, 97, 169, 171, 172, 
208; Globe, pp. 138, 478, 580, 581, 537. 

According to a proclamation of the Secretary of State, dated Dec 18, 1865, 
the amendment was ratified by the following States: Illinois, Feb. 1, 1885; 
Bhode iHland, Feb. 2, 1865; Michigan, Feb. 2. 1865; Maryland, Feb. 3,1865; New 
York, Feb. 3, 1865; West Virginia; Feb. 3. 1865; Maine, Feb. 7, 1865; Kansas, Feb. 
7, 1865; Massachusetts, Feb. 8, 1865; Pennsylvania, Feb. 8. 1865; Virginia. Feb. 9, 
1H65; Ohio, Feb. 10, 1865; Missouri, Feb. 10, 1865; Indiana, Feb. 16, 1865; Nevada, 
Feb. 16, 1865; Louisiana, Feb. 17, 1865; Minnesota, Feb. 23, 1865; Wisconsin, 
Mar. 1, 1865; Vermont, Mar. 9, 1865; Tennessee, Apr. 7, 1865; Arkansas, 
Apr. 20,1865; Connectioat, May 5, 1865; New Hampohire, July 1, 1865; South 



PROPOSED AMEND>rENTS TO THE CONSTITUTION. 367 

♦**985 [983]. Personal Relations: Prohibition of slavery. (The XIII 
Amendment. ) — Continued. 

Carolina, Nov. 13, 1866; Alabama, Dec. 2, 1885; North Carolina, Dec. 4, 1865; 
Qeorgia, Dec. 9, 1865. The following States not enumerated in the proclama- 
tion of Secretary of State also ratified this amendment: Oregon, Dec. 11, 
1865; California, Dec. 20, 1865; Florida, Dec. 28, 1865; New Jersey, Jan. 23, 1866; 
Iowa, Jan. 24, 1866; Texas, Feb. 18, 1870. Manual and Digest of the House of 
Representatives, 53d Cong., 2d 8eB8.,pp. 36-37. Documentary History of the 
Constitution of the United States of America. Vol. ii, pp. 520-637. (Bulletin 
of the Bureau of BoUs and Library, Department of State, No. 7.) Re- 
jected by Delaware and Kentucky. Lalor, i, p. 608. 

986 [985]. Personal Relations: Prohibition of slavery. 
986a. Legislative: Apportionment of Representatives. 

986b. Personal Relations: Repeal of the fngitive slave clause. 

1864, Feb. 17. S. 16, 38th Cong., Ist sess. By Mr. Sumner of Massachusetts, 
as an amendment to com. resolution; received and ordered printed. Globe, 
p. 004. 

987 [985]. Personal Relations: Negroes excluded from citizenship and 
office. 

988 [985]. Territorial: Division of New England. 

1864, Mar. 3. S. 16, 38th Cong., Ist session. Mr. Davis of Kentucky; a sub- 
stitute for com. resolution; received. Globe, p. "921. 

989 [985]. Territorial: New division of New England. 

1864, Mar. 30. S. 16,38th Cong., Ist sess. By Mr. Davis of Kentucky; i^ sub- 
stitute for com. resolution; received; withdrawn. S. J., p. °201-92; Globe, 
p.l846,»136i,»1370. 

090 [985]. Personal Relations: Negroes excluded from citizenship and 
office. 

1864, Mar. 31. S. 16. 38th Cong., Ist sess. By Mr. Davis of Kentucky. Rein- 
troduces amendment of Mar. 3 as a substitute to com. resolution; rejected 
(6 to 28) ; (not a quorum) ; considered and rejected (5 to 82). S. J. , pp. <>201-92, 
30(W01 ; Globe, pp. ol370, <»1424. 

991 [985]. Personal Relations: Negroes exclnded from citizenship and 

office. 

1864, Apr. 5. S . 16, 38th Cong. , Ist sess. By Mr. Davis of Kentucky. Reintro- 
duces same amendment to be added to oom. resolution; rejected. S. J., pp. 
300-301; Globe, P.01424. 

992 [985]. Personal Relations: Slaves to be removed by the Gk>vernment 
from slave States before being entitled to their freedom. 

1864, Apr. 5. 8. 16, 38th Cong., 1st .sess. By Mr. Davis of Kentucky: to add 
to first section of com. amendment; rejected. Globe, p. *'1424. 

993 [985] . Personal Relations: Compensation of slaves emancipated 

required. 

1864, Apr. 6. S. 16. 38th Cong. , Ist sess. By Mr. Powell of Kentucky ; to add 
to oom. amendment; rejected (2 to 34). Globe, p.*>1426. 

994 [985]. Personal Relations: .Distribution of freedmen through the 
States and Territories according to the white population. 

1864, Apr. 6. S.16, 38th Cong., 1st seas. By Mr. Davis of Kentucky; to add 
to com. amendment; rejected. Globe, p. °1425. 

995 [985] . Executive: One term only, six years. 

1864, Apr. 6. 8. 16, 88th Cong. , Ist sess. By Mr. Powell of Kentucky ; to add 
at end of com. amendment as an independent proposition; rejected (12 to 3S). 
S. J., p. »303; Globe, pp. «1444-1446. 



368 AMERICAN HISTORICAL ASSOCIATION. 

996 [985]. ExecntiTe: Pr^dent's power of removal from office. 

1864, Apr. 6. 8. 16,88th Cong., Ist sees. By Mr. Powell of Kentucky, to add 
to com. amendment as an additional article; rejected (6 to 88). 8. J.,p.<*80B; 
Globe, pp. 01446-47. 

997 [965]. LegiBlative: ** Riders "prohibited. 

1864, Apr. 6. 8. 16, 88th Cong. , lat aesB. By Mr. Powell of Kentucky, to add 
a separate article to com. amendment; rejected (6 to 87). 8. J., p. <>804; Globe, 
p.n447. 

998 [965]. Personal Relations: Prohibition of slavery. 

1864, Apr. 8. 8. 16, 88th Cong., Ist seas. By Mr. Sumner of Maaaachuaetta, 
aa a suhetitute to com. amendment; withdrawn. Globe, pp. °1488, ol487-1480. 

999 [985]. Personal Relations: Religions freedom guaranteed. 

1000. Personal Relations: Rights of the press: Restrictions. 

1001. Personal Relations: Right of free speech, etc. 

1002. Personal Relations: Rights of the people against the militia. 
1008. Personal and Territorial: Slavery in territories south of 86^ 80'« 

1004. Personal and Territorial: Slavery in the District of Columbia. 

1005. Territorial: Admission of Territories as States. 

lOOiS. Power of Amendment: Three-fifths representation of slaves not to 
be abolished without consent of slave States. 

1007. Personal Relations: Slavery in States south of 86° 80' regulated by 
each State. 

1008. Personal Relations: Return of fugitive slaves not to be obstructed. 

1009. Personal Relations; Right of transit with sla